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THE  ELGIN  BOTANIC  GARDEN 

ITS  LATER  HISTORY 

AND  RELATION  TO 

COLUMBIA  COLLEGE 
THE  NEW  HAMPSHIRE  GRANTS 

AND 

THE  TREATY  WITH  VERMONT  IN  1790 

BY 

ADDISON  BROWN,  A.B.,  LL.B.,  LL.D. 

Ex-Judge  of  the  United  States  District  Court  for  the 
Southern  District  of  New  York 


Press  of 
THE  NEW  Era  Printing  Company 
Lancaster,  pa. 
1903 


AA 


Copyright  1908 
By  Addison  Brown 


« 


PREFACE 

The  following  sketch  was  written  for  the  Bulletin  of  the  N.  Y. 
Botanical  Garden  (vol.  V:  319—372)  from  which  it  is  taken.  The 
subject  of  the  latter  part  of  the  article,  viz.,  whether  in  the  grant  to 
Columbia  College  in  181 4  the  intent  of  the  Legislature  was  to  make 
compensation  for  any  loss  or  injury  to  the  College  through  the  treaty 
of  1790,  was  found  to  require,  having  regard  to  the  probabilities  of 
the  case  as  affected  by  the  origin  and  historj-  of  the  claim,  more 
historical  treatment  than  was  anticipated. 

The  question,  though  not  now  of  any  practical  concern  to  the 
parties  to  it,  is  of  much  historical  interest  and  importance.  For  if 
compensation  was  intended,  the  case  affords  a  valuable  precedent 
for  the  future ;  while  on  the  other  hand  the  state's  refusal  of  com- 
pensation to  many  other  similar  applicants  in  the  same  matter 
would  convict  the  State  of  partiality  to  the  one,  or  of  gross  injustice 
to  all  the  rest. 

Having  become  satisfied  upon  examination  that  the  Legislature 
in  1814  had  no  such  intent  as  alleged,  and  that  no  such  inconsist- 
ency existed,  it  seemed  desirable  that  the  main  considerations  leading 
to  a  conclusion  so  contrary  to  current  statements,  should  be  fully 
stated.  Among  the  most  important  of  these  are  the  origin  of  the 
patents  on  which  the  land  claims  were  based  ;  the  authority  of  the 
governors  to  make  them  ;  their  terms  and  conditions,  and  what  was 
done  under  them  ;  and  finally  their  status  and  actual  and  prospective 
value  in  1790,  when  the  treaty  is  said  to  have  caused  the  injury'. 

At  the  foundation  of  these  enquiries,  therefore,  lay  the  question 
of  the  limits  of  the  jurisdiction  of  the  governors  who  granted  the 
patents,  or  the  Eastern  boundarj'  of  the  Province  of  New  York 
under  the  Charter  of  1664;  or,  since  that  charter  contained  no 
definite  northern  or  eastern  boundary,  the  extent  of  the  actual  settle- 
ment and  occupancy  by  New  York  or  by  the  Dutch,  to  whose  rights 
New  York  by  capture  succeeded. 

iii 


iv 


PREFACE. 


As  the  Duke  of  York's  charters,  moreover,  in  1688  merged  in  the 
Crown,  whereby  his  proprietary  government  ceased  and  New  York 
became,  like  New  Hampshire,  a  royal  province  only,  the  boundaries 
of  both  provinces  and  the  jurisdiction  and  authority  of  their  gover- 
nors were  thereafter  at  all  times  alterable  at  the  King's  pleasure. 
The  reports  of  the  Lords  of  Trade,  who  were  charged  with  the 
Colonial  administration,  and  the  royal  orders  based  upon  them,  as 
those  orders  were  intended,  understood  and  construed  by  the  Crown 
and  its  chief  ministers,  and  as  expressed  through  their  instructions 
to  the  provincial  governors  were  binding  and  conclusive,  and  hence 
of  prime  importance  in  this  enquiry. 

The  compilation  of  these  papers  now  published  in  the  Documen- 
tary History  of  New  York  and  in  documents  relative  to  the  Colon- 
ial History  of  New  York  has  made  this  material  easily  accessible. 
The  larger  local  histories  make  full  use  of  it.  The  general  histories 
make  little  allusion  to  this  subject,  and  I  have  found  no  account 
that  in  brief  space  sets  forth  what  seems  indispen^le  to  a  right 
understanding  and  comprehension  of  the  original  merits  of  the  New 
York  land  claims  in  the  New  Hampshire  grants  and  their  status  in 
1 790,  with  such  citations  from  the  papers  above  referred  to  as  would 
enable  the  reader  to  form  some  judgment  of  his  own,  and  to  pursue 
further  inquiries  as  might  be  desired.  The  notes  referred  to  in  the 
main  text  are  designed  to  supply  this  desideratum. 

For  data  respecting  the  later  history  of  Elgin  Garden,  the  writer 
acknowledges  with  thanks  his  obligations  to  J.  B.  Pine  Esq.,  Sec- 
retary of  Columbia  University,  and  to  Prof.  F.  S.  Lee,  of  the  Col- 
lege of  Physicians  and  Surgeons. 

A.  B. 

New  York,  March,  1908. 


The  Elgin  Botanical  Garden,  its  Later  History,  and  Relation  to 
Columbia  College  and  the  Vermont  Land  Controversy. 


A  century  ago,  the  Elgin  Botanical  Garden,  opposite  the 
present  Cathedral  at  Fifth  Avenue  and  Fiftieth  Street,  was 
the  pride  of  the  New  Yorkers  of  that  day.  It  was  the  first 
establishment  of  the  kind  in  this  State,  and  was  regarded 
as  a  marvel  of  the  skill,  zeal  and  munificence  of  Dr.  David 
Hosack,  who  had  created  it.  Something  of  the  romantic  in- 
terest that  originally  attached  to  it  has  descended  to  our  own 
times,  though  as  a  botanical  garden  it  has  long  since  disap- 
peared. Its  history  up  to  January,  1811,  when  Dr.  Hosack 
conveyed  it  to  the  State,  is  pretty  fully  told  by  him  in  his 

Statement  of  Facts," etc.,  concerning  it,  published  in  March, 
i8ii,*from  which  most  of  the  subsequent  notices  of  it  are 
drawn,  and  there  end.  Nor  have  I  been  able  to  find  any 
consecutive  account  of  the  use  and  management  of  the  gar- 
den after  that  date,  or  of  its  decline  and  extinction.  Such 
facts  as  have  been  learned  will  supplement,  in  some  measure, 
the  early  narratives. 

Latterly  also  some  errors  have  crept  into  current  accounts. 
In  a  recent  address,  the  site  of  the  garden  is  incorrectly  given. f 
A  common  impression  also  has  been  that  Columbia  College 
received  the  property  from  the  State  in  1814  under  an  obliga- 
tion to  maintain  it  as  a  botanical  garden ;  though  released 
from  that  duty  by  Ch.  19  of  the  Laws  of  1819.  Lossing  states 
this  explicitly.  J  The  same  idea  is  expressed  in  the  Columbia 
University  Quarterly.  §  In  Torreya  (loc.  cit.)  it  is  said  that  in 
Columbia's  hands  the  use  of  the  grounds  "was  diverted  from 
that  of  a  botanical  garden  to  highly  profitable  rentals." 

*  Published  apparently  to  correct  some  errors  and  misrepresentations  about 
its  sale  to  the  State.  An  earlier  and  much  briefer  Descriptive  Tract,  with- 
out date,  containing  some  additional  particulars,  may  be  found  in  the  N.  Y. 
Historical  Society,  and  in  Med.  Repository,  13  :  292.  1810. 

t  Torreya,  6  :  104,  105.  1906. 

X  Hist,  of  N.  Y.  City,  146.  1884. 

25:  279.  1903. 


THE  ELGIN  GARDEN— CURRENT  ERRORS. 


More  common  is  the  statement,  unknown,  so  far  as  I  can 
find,  for  forty  years  after  the  gift  to  Columbia,  that  the  grant 
of  the  Garden  to  her  in  1814  was  made  as  a  "  reimburse- 
ment "  or  "  compensation  "  to  Columbia  for  her  lands  in  Ver- 
mont, ceded  "  by  New  York  to  that  State  by  the  treaty  of 
1790.  *    It  has  even  been  called  an  "  exchange  "  \ 

These  expressions,  I  think,  are  all  misconceptions  having 
no  valid  basis.  It  is  desirable  that  the  facts  derived  from 
records  and  documents  bearing  on  these  points  should  be 
brought  together,  both  from  their  inherent  interest  and  their 
connection  with  a  striking  episode  in  our  colonial  and  revo- 
lutionary history. 

Something,  however,  should  be  premised  of  the  eminent 
man  by  whom  the  Elgin  Garden  was  founded.  His  father, 
Alexander  Hosack,  was  born  at  Elgin  (for  which  the  garden 
was  named)  in  Scotland,  in  1736.  In  1758  he  came  with 
Gen.  Jeffrey  Amherst,  as  an  artillery  officer,  to  the  siege  and 
capture  of  Louisberg,  and  afterward  settled  in  New  York, 
where  he  married  Jane,  daughter  of  Francis  Arden,  a  promi- 
nent New  York  merchant.  David  Hosack  was  their  oldest 
son,  born  August  31,  1769.  He  was  for  two  and  one  half 
years  a  pupil  of  Columbia,  but  completed  his  college  course 
in  1789  at  Princeton. 

He  received  his  medical  degrees  at  the  University  of  Penn- 
sylvania in  1791,  and  at  Edinburgh  in  1793,  studying  there 
and  in  London  from  1792  to  1794,  where  he  met  many  sci- 
entific men. 

One  day,"  he  writes,  **  while  walking  in  the  garden  of 
Prof.  Hamilton,  near  Edinburgh,  I  was  very  much  mortified 
by  my  ignorance  of  botany,  with  which  his  other  guests  were 
familiar,  and  I  resolved  to  acquire  a  knowledge  of  that  de- 
partment of  science."  | 

He  was  soon  pursuing  botany  diligently  under  Curtis  in 
his  botanical  garden  at  Brompton,  and  afterwards  with  Sir 

*  New  Internat.  Encycl.,  5  :  49.  1903  ;  Van  Amringe,  Hist.  Columbia  Col., 
67.  1876. 

t  Columbia  Univ.  Quart.,  5  :  279.  1903  ;  King's  Handbook  of  N.  Y.,  272. 
1893- 

X  Dr.  A.  E.  Hosack  in  Gross'  Amer.  Med.  Biog.,  i  :  297,  298.  i860. 


DR.  HOSACK—JTS  FOUNDER. 


3 


James  E.  Smith,  president  of  the  Linnean  Society,  who  be- 
came a  life-long  friend. 

On  his  return  to  New  York,  Dr.  Hosack  took  with  him  the 
first  considerable  cabinet  of  minerals  brought  to  this  country, 
and  also  duplicates  of  the  herbarium  of  Linnaeus,  afterwards 
given  by  him  to  the  Lyceum  of  Natural  History,  but  since 
destroyed  by  fire. 

In  1795  he  was  made  professor  of  botany  in  Columbia 
College,  and  in  1797,  of  materia  medica  also,  which  chairs  he 
retained  until  181 1,  when  he  resigned,  on  being  made  pro- 
fessor of  materia  medica  and  clinical  medicine  in  the  College 
of  Physicians  and  Surgeons,  which  he  held  until  1826.*  In 
that  year  he,  with  Dr.  Mott,  Dr.  Francis  and  others,  resigned, 
through  dissatisfaction  with  the  government  of  that  institution, 
and  formed  the  Rutgers  Medical  College,  with  Dr.  Hosack  as 
president  of  the  faculty,  f  The  new  school  was  very  pros- 
perous until  the  state  interfered  in  1830  and  gave  such  advan- 
tages to  the  College  of  Physicians  and  Surgeons  as  caused 
Rutgers  to  be  abandoned,  though  without  immediate  advan- 
tages to  its  older  competitor.  J  Dr.  Hosack  did  not  afterwards 
engage  in  public  instruction.  He  died  December  23,  1835, 
from  apoplexy  caused  by  exposure  to  extreme  cold. 

The  above  engagements  form  but  a  small  part  of  Dr. 
Hosack's  activities.  In  1796  he  became  a  partner  of  Dr. 
Samuel  Bard,  who  in  1798  retired  to  the  country  at  Hyde 
Park  §  (where  Dr.  Hosack  afterwards  had  a  summer  resi- 
dence), leaving  Dr.  Hosack  in  the  enjoyment  of  a  large  and 
lucrative  practice.  He  became,  says  Dr.  Francis,  for  thirty 
years  the  leading  practitioner  of  his  time.  For  twenty  years 
he  was  one  of  the  physicians  of  the  New  York  Hospital.  He 
attended  Hamilton  at  his  fatal  meeting  with  Burr,  July  11, 
1804,  and  the  following  day  until  his  death. 

*  Pres.  Barnard,  Ann.  Rept.  1878  :  39. 

t  Hosack,  Inaug.  Address,  Rutg.  Med.  Col.,  1826. 

JDr.  Francis  in  S.  W.  Williams'  Atner.  Med.  Biog.,  276.  1843;  Gross' 
Amer.  Med.  Biog.,  295-317.  i860  —  the  best  sketches  of  Dr.  Hosack's  life 
that  I  have  met,  though  they  make  but  little  mention  of  the  Elgin  Garden. 

?  Dr.  Ducachet  in  Amer.  Med.  Recorder,  4  :  609. 


4 


THE  ELGIN  BOTANIC  GARDEN. 


It  is  a  mark  of  Dr.  Hosack's  magnanimity  of  character, 
that  though  like  Hamilton's  other  friends  he  probably  re- 
garded Col.  Burr  as  little  better  than  Hamilton's  murderer,  he 
nevertheless,  four  years  afterward,  when  Burr,  acquitted  of 
treason,  was  in  hiding  in  New  York,  seeking  shelter  from 
universal  and  overwhelming  obloquy,  supplied  him  with 
necessary  passage  money  to  effect  his  escape  to  Europe.* 

Dr.  Hosack  was  one  of  the  leaders  in  establishing  the 
College  of  Physicians  and  Surgeons  in  1807,!  where  he  was 
professor  of  botany  from  1807  to  1808,  when  he  resigned. 
He  was  one  of  the  organizers  of  the  New  York  Historical 
Society,  and  for  eight  years  its  president,  and  for  several 
years  president  of  the  New  York  Horticultural  Society. 
Bellevue  Hospital  and  the  Humane  Society  were  established 

mainly  by  his  persevering  exertions."  J  He  was  a  fellow 
of  the  American  Literary  and  Philosophical  Society,  and  of 
the  Edinburgh  and  London  Royal  Societies. 

He  was  large  and  robust  of  frame,  of  commanding  pres- 
ence and  a  piercing  eye.  His  ideas  and  his  views  were  also 
large  and  broad.  He  had  a  facile  and  elegant  pen.  From 
181 1  to  1814  he  edited,  with  Dr.  Mitchill,  The  American 
Medical  and  Philosophical  Register  (4  vols.),  and  his  writings 
were  numerous  —  medical,  literary  and  biographical,  includ- 
ing memoirs  of  Dr.  Hugh  Williamson  and  Gov.  De  Witt 
Clinton. 

'*  His  ardent  temperament,"  says  Dr.  Dalton,§  *'  and  un-  ■ 
doubting  self-reliance  led  him  to  the  front  in  many  contro- 
versial discussions,  and  his  views  were  always  maintained 
with  force  and  ability.  His  sonorous  voice,  impressive  man- 
ner and  changing  expression  of  face,  gestures  and  utterance 
held  attention." 

"  Hosack  was  a  man  of  profuse  expenditure,"  says  Dr. 
Francis;  *'  had  he  the  wealth  of  Astor  he  might  have  died 
poor.  ...  It  was  his  general  rule  to  terminate  his  spring 

*  Lamb's  Hist,  of  N.  Y.,  2 :  540. 

t  Hist.  Columbia  Un.,  316.    1904;  Gross' Amer.  Med.  Biog.,  316.  i860. 
X  Lossing's  Hist.  New  York  City,  i  :  115.  1884. 
§  Dalton's  Hist.  Col.  Phys.  and  S.,  39,  40.  1888. 


DR.  HOSACK—ITS  FOUNDER. 


5 


course  of  botanical  lectures  by  a  strawberry  festival,  .  .  . 
to  be  practical  as  well  as  theoretical."  "  The  disciples  of 
the  illustrious  Swede  must  have  a  foretaste  of  them,"  he  said, 
"if  they  cost  me  a  dollar  a  piece."*  His  character  and 
social  position  are  thus  summarized  : 

"  In  all  prominent  movements  concerned  with  the  arts,  the 
drama,  literature,  medicine,  city  improvements  or  state  affairs. 
Dr.  Hosack  bore  a  conspicuous  part ;  ...  he  was  distin- 
guished beyond  all  rivals  in  the  art  of  healing ;  universally 
acknowledged,  also,  to  have  been  the  most  eloquent  and  im- 
pressive teacher  of  scientific  medicine  and  clinical  practice 
this  country  had  as  yet  produced.  His  manner  was  pleasing, 
and  his  descriptive  powers  and  his  diagnosis  were  the  admi- 
ration of  all.  .  .  .  His  early  efforts  to  establish  a  medical 
library  in  the  New  York  Hospital,  his  cooperation  with  the 
numerous  charities  which  glorify  the  metropolis,  his  primary 
formation  of  a  mineralogical  cabinet,  his  copious  writings  on 
fevers,  quarantines  and  foreign  pestilence  .  .  .  and  his  ad- 
venturous outlay  in  establishing  the  botanical  garden,  evinced 
the  lofty  aspirations  which  marked  his  whole  career  as  a 
citizen.  It  was  a  frequent  remark  in  New  York  during  his 
lifetime  that  Clinton,  Hosack  and  Hobart  were  the  tripod 
upon  which  the  City  stood. 

"Through  his  fondness  for  society  he  exerted  a  strong 
personal  influence.  He  gave  Saturday  evening  parties,  and, 
surrounded  by  his  large  and  costly  library  and  his  works  of 
art,  there  never  was  a  more  genial  and  captivating  host. 
Great  divines,  jurists,  etc.,  .  *.  .  and  distinguished  foreigners 
were  summoned  to  his  entertainments  and  charmed  with  his 
liberal  hospitality.  His  home  was  the  resort  of  the  learned 
and  enlightened  from  every  part  of  the  world.  No  European 
traveller  rested  satisfied  without  a  personal  interview  with 
Dr.  Hosack;  .  .  .  the  Duke  of  Saxe  Weimar  mentions  in 
his  diary  the  social  prominence  of  the  Hosack  Saturday 
evenings." 

His  son,  Alexander  Eddy  Hosack,  was  a  surgeon  of  dis- 
tinction, who  died  at  Newport,  R.  I.,  in  March,  1871  ;  his 
widow  bequeathed  $70,000  for  the  Main  Hall  in  the  New 
York  Academy  of  Medicine,  where  a  tablet  commemorates 

*  Dr.  Francis'  Old  New  York,  30-31  ;  84,  85  ;  Lamb's  Hist.  N.  Y.,  a  :  581- 
583. 


« 


6 


THE  ELGIN  BOTANIC  GARDEN. 


his  memory.  His  botanical  library  has  been  given  by  that 
institution  to  the  New  York  Botanical  Garden  in  Bronx  Park. 

The  Founding  of  the  Garden. 

Soon  after  his  appointment  in  1798,  Dr.  Hosack  desired 
Columbia  College  to  apply  a  small  sum  annually  for  a  botan- 
ical garden,  as  an  aid  in  the  study  of  materia  jncdica.  A  com- 
mittee recommended  £300  annually ;  but  the  trustees  dis- 
allowed it  for  lack  of  funds.  In  1800  he  applied  to  the  state 
legislature  to  aid  in  the  same  project,  but  without  success.  He 
then  determined  to  undertake  the  work  with  his  own  means, 
trusting  that  when  developed  the  garden  would  command 
public  support. 

Accordingly  in  1801  he  bought  of  the  city  four  plots  of  the 

common  lands  "(Nos.  54,  55,  60  and  61)  in  all  about  twenty 
acres,  or  256  city  lots,  extending  from  47th  Street  to  51st 
Street  and  from  Middle  Road  (now  Fifth  Ave.)  westward  to 
a  line  about  100  feet  east  of  Sixth  Avenue.  The  deed  was 
dated  and  executed  by  Mayor  De  Witt  Clinton  August  6,  1804. 
It  conveyed  to  David  Hosack  the  above  four  plots  for 
$4,807.36  in  money,  and  a  quit  rent  of  sixteen  bushels  of 
good  merchantable  wheat  to  be  paid  every  May  i  in  kind,  or 
its  equivalent  in  gold  or  silver  coin.*  These  quit  rents  were 
in  1810  commuted  and  released  for  $285.71  ;  and  in  exchange 
for  the  city's  rights  in  the  streets  through  the  four  lots,  he 
conveyed  to  the  city  in  December,  1810,  plot  No.  84  of  the 
common  lands,  of  about  five  acres  on  57th  Street. f  As  the 
garden  work  was  begun  in  1801,  probably  that  was  the  date  of 
the  purchase  and  first  part  payment,  the  deed  in  1804  being 
given  on  the  complete  payment  of  the  price. 

The  development  of  the  garden  was  pushed  forward  with 
the  energy  and  success  of  an  enthusiast.  Dr.  Hosack's 
acquaintance  with  scientific  men  abroad  greatly  aided  him  in 
obtaining  plants,  seeds,  shrubs  and  trees  from  every  quarter. 
By  1806  the  grounds,  he  says,  were  mostly  under  cultivation, 

*  Recorded  in  Comptroller's  office,  Vol.  i,  fol.  62. 

t  Deed  dated  December  31,  1810.  Recorded  in  Reg.  office,  Liber  323,  p.  534. 


ITS  SALE  TO  THE  STATE. 


7 


having  about  2,000  species  of  plants,  with  one  spacious  green- 
house and  two  hot-houses,  presenting  a  frontage  of  180  feet. 
The  plots  devoted  to  plants  were  encircled  by  shrubs  and 
trees  ;  and  the  whole  ground  enclosed  by  a  stone  wall  seven 
feet  high  and  two  and  one  half  feet  thick,  Pursh  was  for  a 
number  of  years  the  curator. 

The  early  descriptive  tract  above  referred  to  says : 

"A  nursery  is  also  begun  for  the  purpose  of  introducing 
into  this  country  the  choicest  fruits  of  the  table,  .  .  .  which 
the  proprietor  has  been  enabled  to  procure  from  various  parts 
of  the  world,  and  from  which  the  establishment  will  hereafter 
derive  one  of  the  -principal  sources  of  its  support''  —  an  ex- 
pectation which,  of  course,  was  but  slightly  realized. 

Dr.  Francis  in  his     Old  New  York"  (pp.  28-29)  says : 

"  In  1807  the  garden  was  a  triumph  of  individual  zeal, 
ambition  and  liberality,  of  which  our  citizens  had  reason  to  be 
proud.  The  eminent  projector  of  this  garden,  with  princely 
munificence,  had  made  these  grounds  a  resort  for  the  ad- 
mirers of  Nature's  vegetable  wonders  and  for  the  students  of 
her  mysteries."  * 

The  Sale  to  the  State.  —  Dr.  Hosack's  expenditures  upon 
the  garden,  according  to  his  "  Statement''''  (p.  56),  must  have 
exceeded  $100,000.  Unable  to  sustain  this  burden,  and  dis- 
appointed in  his  appeals  to  the  Legislature  for  support  in 
1805  and  1806,  he  was  compelled  in  1808  to  offer  the  garden 
for  sale.  Upon  the  advice  of  many  friends,  in  order  to  pre- 
serve it  from  extinction,  he  petitioned  the  Legislature  in 
1808  and  again  in  1809  to  purchase  and  maintain  it  as  an  aid 
in  medical  education.  Failing  in  the  latter  year  by  only  six 
votes,  the  petition  was  renewed  in  1810,  supported  by  special 
memorials  from  the  mayor,  the  common  council  of  the  city, 
the  governors  of  the  New  York  Hospital,  the  County  Medical 
Society  and  five  other  medical  societies  of  the  state,  and  by 
many  of  the  most  prominent  citizens  and  numerous  medical 

*Soon  after  the  garden  was  established,  the  site  of  the  present  cathedral 
at  50th  Street  was  purchased  for  the  Jesuit  College,  the  garden  opposite  being 
one  of  the  attractions  to  that  block.  That  college  was  carried  on  for  a  num- 
ber of  years.    See  U.  S.  Catholic  Soc.  Hist.  Records,  4  :  329-334.  1906. 


8 


THE  ELGIN  BOTANIC  GARDEN. 


students.  The  medical  faculty  of  the  College  of  Physicians 
and  Surgeons  also  favored  the  petition  ;  but  the  censors  and 
trustees  strongly  opposed  it,  because  of  the  distance  of  the 
garden  from  the  college  (three  and  one  half  miles)  and  of  its 
subordinate  importance  in  medical  education.  The  trustees 
of  Columbia  also  declined  to  lend  their  support.*  It  is  not 
improbable  that  an  additional  reason  for  not  joining  in  the 
application  was  that  it  might  naturally  obstruct  further  grants 
of  patronage  to  themselves,  which  both  colleges  greatly 
needed  for  other  purposes. 

After, much  debate,  a  bill  was  passed  March  12,  1810,  by 
a  small  majority  authorizing  the  purchase  and  a  lottery  to 
raise  money  to  pay  for  it.  The  act  was  entitled  an  '*  Act  for 
promoting  Medical  Science  in  the  State  of  New  York."  It 
directed  the  fair  value  of  the  land  and  improvements,  ex- 
cluding the  plants,  to  be  ascertained  by  commissioners  and 
paid  from  the  proceeds  of  the  lottery.  Appraisers  fixed  this 
value  at  $74,268.75  ;  the  land  and  wall  being  rated  at  $2,500 
per  acre,  and  the  buildings  at  $24,300,  and  the  plants  at 
$12,635.  Dr.  Hosack  accepted  the  terms  of  the  act  though 
the  compensation  was  $28,000  less  than  his  outlay ;  and 
having,  as  required,  cleared  the  title  of  claims  for  quit  rents 
and  street  rights,  he  conveyed  the  grounds,  buildings  and 
plants  to  the  People  of  the  State  by  deed  dated  January  3,  and 
filed  in  the  oflfice  of  the  Secretary  of  State,  January  14,  181  i.f 

*  See  Exposition  of  the  Transactions  of  the  College  of  Physicians  and 
Surgeons,  16-21.  1812.  This  pamphlet  exhibits  the  bitter  feeling  which 
at  that  time  existed  between  the  two  medical  schools,  which  were  soon 
afterward  united.  At  page  18,  an  amusing  satirical  note  after  referring  to 
the  botanical  garden  as  Dr.  Hosack's  counity-seat"  and  "garden,"  pro- 
ceeds as  follows : 

"  On  the  gate  is  now  written,  '  2  Shillings  admittance,  excepting  sub- 
scribers and  purchasers.'  .  .  .  Money  is  drawn  from  the  sale  of  plants  and 
vegetables  and  the  Jiasturing  of  cattle.  These  animals,  to  the  number  of  20 
or  30,  attend  the  Botanical  Gat  den  and  excite  the  ridicule  of  travellers  passing 
there." 

t  Several  trust  deeds  in  the  nature  of  mortgages,  executed  soon  afterwards 
by  Dr.  H.  upon  the  expected  proceeds  of  the  Lottery,  for  the  benefit  of  Nath. 
Pendleton,  Brockholst  Livingston  and  several  others,  show  how  considerably 
Dr.  H.  had  been  obliged  to  draw  upon  his  friends  in  building  up  the  Garden 
enterprize.  (Liber  90,  p.  524,  February  23,  iSii;  Lib.  91,  p.  74,  March  5,  1811.) 


THE  REGENTS  — PHYSICIAN'S  COLLEGE,  ETC.  9 


The  general  interest  apparently  indicated  by  the  wide  sup- 
port of  Dr.  Hosack's  petition,  led  Dr.  Mitchill  in  June,  1810, 
to  open  a  course  of  popular  botanical  lectures  at  12  Magazine 
(Pearl)  Street;  but  though,  as  he  says,  "they  were  carefully 
arranged  and  well  advertised,"  there  was  but  a  slight  attend- 
ance— 15,  10,  4,  and  9  persons  at  the  first  four  lectures  re- 
spectively, "  without  a  single  course  ticket  sold,  or  a  pupil 
engaged";  and  the  course  was  then  abandoned.  (Letter  of 
Dr.  M.,  June  19,  1810,  in  "  Exposition  etc.  of  Phys.  and  S." 
21-23.  1812.) 

Under  the  Regents  and  the  College  of  Physicians 
AND  Surgeons,  1811  to  1816. 
The  Act  of  1 8 10  provided  for  the  management  of  the 
Garden  as  follows:  (Sect.  VII.) 

"The  Regents  shall  from  time  to  time  make  such  orders 
and  regulations  relative  to  the  keeping,  matntatning  and  pre- 
serving the  said  botanical  garden  and  the  use  and  employ- 
ment thereof  for  the  benefit  of  the  Medical  Schools  of  this 
State  as  they  shall  judge  most  conducive  to  the  public  good ; 
and  they  are  hereby  directed  to  make  such  regulations  and 
take  such  measures  for  the  suff>ort  of  said  establishment.,  that 
it  shall  be  attended  with  no  future  charge  or  exfense  to  the 
State ;  -provided  that  physicians  and  medical  students  shall 
at  all  times  have  access  to  it  free  from  any  expense;  and 
provided  that  the  People  of  this  State  shall  have  the  right  at 
all  times  to  sell  and  dispose  of  said  property  in  such  way  and 
for  such  purposes  as  they  may  deem  expedient." 

The  regents  being  thus  forbidden  to  incur  any  expense  to 
the  State,  committed  the  garden  in  May  181 1  to  the  manage- 
ment of  the  College  of  Physicians  and  Surgeons, 

to  be  kept  and  preserved  in  a  condition  fit  for  all  medical 
purposes  and  open  to  medical  students."* 

Up  to  that  time  Dr.  Hosack  had  continued  to  pay  the  garden 
expenses,  f  and  the  medical  students  of  both  colleges  had  en- 
joyed the  privileges  of  the  garden  in  botanical  instruction.  % 

*  Am.  Med.  and  Phil.  Reg.,  2:4;  3  :  242  ;  4  :  117.    1811-1814  ;  Regents' 
Rept.,  1811,  1812.    Notice  and  Act  in  Medical  Repos.,  14  :  373.  1811. 
t  Regents'  Rept.,  January  12,  1812. 

X  Rept.  to  Regents  by  Col.  Phys.  and  S.,  1808.  * 


lO 


THE  ELGIN  BOTANIC  GARDEN. 


In  June,  1811,  the  garden  was  leased  by  the  College  of 
Physicians  and  Surgeons  for  five  years  to  Michael  Denison, 
Dr.  Hosack's  former  gardener,  whereby  he  agreed  to  keep 
it  in  good  condition  (after  certain  repairs  by  the  College, 
costing  $543.98)  in  consideration  of  his  having  the  produce 
of  it,  reserving  for  the  garden,  under  the  College  inspection, 
three  plants  of  every  species.*  The  buildings  and  the  culti- 
vation of  herbaceous  plants,  as  I  surmise  from  the  subsequent 
leases,  were  confined  to  the  northeast  part  of  the  garden 
grounds,  /.  i?.,  north  of  49th  Street,  and  extending  not  over 
450  feet  westward  from  Fifth  Avenue,  the  rest  being  used 
for  shrubs,  trees,  nursery,  crops  and  pasturage.  The  con- 
servatories were  between  50th  and  51st  Streets. 

In  181 1,  the  College  of  Physicians  and  Surgeons  was  re- 
organized by  the  Regents  under  a  new  charter.  Dr.  Hosack 
was  called  to  the  chair  of  materia  medica  and  clinical  medi- 
cine, and  was  largely  instrumental  in  bringing  about  the 
union  of  the  medical  department  of  Columbia  with  the 
Physicians'  College,  which  was  completed  in  1813-14.!  Dr. 
Mitchill  was  professor  of  natural  history  including  botany. 

During  the  five  years  of  Denison's  tenancy,  the  College  of 
Physicians  and  Surgeons  had  all  the  use  of  the  garden  that 
was  desired.  Dr.  Mitchill  "  availed  himself  of  its  advan- 
tages." X    In  1812  Dr.  Hosack  gave  the  lectures  on  Botany, 

and  the  State  Botanical  Garden,"  it  was  said,  "  gave  the 
most  ample  opportunity  for  study."  §  In  the  Syllabus  of 
Courses  for  1814,  it  is  said  (p.  19) 

"  For  practical  lessons  on  genera  and  species,  the  grand 
.establishment  of  Elgin  ...  is  visited  as  often  as  neces- 
sary."  || 

Differences,  however,  soon  arose  as  respects  the  care  and 
repair  of  the  garden.  Dr.  Hosack  reported  in  1813  that  re- 
pairs were  much  needed  to  fences,  roads,  cisterns,  flues  and 

♦  Dalton's  Hist.  Col.  Phys.  and  S.,  46.  1888.  Trustees'  Miu.,  June, 
1811  :  18,  35. 

t  Hist.  Col.  Phys.  and  S.,  39,  40. 
X  Ibid.,  46. 

\  Amer.  Med.  &  Phil.  Reg.,  3  :  242. 
\  See  R'egents'  Rep.,  1814  :  19. 


NO  SUPPORT  FROM  THE  STATE. 


II 


conservatories,  and  that  valuable  plants  had  disappeared.* 
I  judge  that  these  defects  were  soon  remedied,  for  the  trustees 
reported  to  the  regents  in  1812,  that  the  garden  was  then 
*'  in  good  condition,"  and  in  1814,  that  "  the  grounds  were 
cultivated  with  care  and  continue  in  the  same  state  of  preser- 
vation as  before."  "  We  have  a  valuable  botanical  garden," 
they  say,  "  highly  useful  and  conducive  to  the  acquisition  of 
knowledge  in  Materia  Medica  "  (p.  10).  In  1815  there  were 
similar  complaints  of  decadence. 

After  several  years  of  trial,  however,  in  consequence  of 
the  distance  of  the  garden  from  the  College,  its  need  of  con- 
stant supervision  and  frequent  repair,  and  the  expense,  the 
difficulty  of  finding  a  responsible  and  faithful  tenant,  the  lack 
of  state  support  and  the  subordinate  importance  of  the  garden 
in  medical  study,  made  the  grant  of  the  garden  grounds  to 
Columbia  College  in  1814!  a  welcome  relief  to  the  trustees 
of  the  College  of  Physicians  and  Surgeons,  though  Dr. 
Hosack  was  loath  to  part  with  it.  Three  times  afterwards, 
as  stated  below,  he  endeavored,  without  success,  to  renew 
his  connection  with  the  garden  by  obtaining  a  lease  of  it  to 
societies  with  which  he  was  associated ;  and  in  1816  he  peti- 
tioned the  legislature,  also  without  success,  to  bestow  the 
garden  upon  the  College  of  Physicians  and  Surgeons,  giving 
to  Columbia  instead,  its  money  value  §  (post,  pp.  16,  17). 

When  the  garden  was  conveyed  to  the  state,  Dr.  Hosack 
hoped  it  would  remain  a  permanent  institution  under  the  state's 
support,  as  the  Jardin  des  Plantes  is  maintained  in  Paris,  fl 
In  that  hope  he  had  projected  an  enterprise,  which,  if  carried 
out,  would  have  been  a  permanent  contribution  to  botanical 
science,  but  which,  almost  a  century  later,  still  remains  un- 
accomplished. In  his  preface  to  the  Elgin  Catalogue  (181 1) 
he  says : 

*  Dalton's  Hist.  Col.  Phys.  and  S.,  38.    1888.    Trustees'  Min.  Col.  Phys. 
and  S.,  I  :  35,  36,  73-78,  114 ;  2 :  33. 
t  Act  of  Ap.  13,  1814,  Ch.  120. 
X  Prof.  Lee  in  Hist.  Columbia  Un.,  316.  1904. 

I  Trustees'  Min.  Col.  Phys.  and  S.,  2  :  73  ;  Assembly  Journal,  1816:  384. 
j  "  But  it  -was  sufiFered  to  go  to  ruin."    Gross'  Amer.  Med.  Biog, ,  316. 


12        GARDEN  GRANTED  TO  COLUMBIA  COLLEGE. 

"As  soon  as  measures  may  be  taken  by  the  Regents  of 
the  University  for  the  permanetit  preservation  of  the  Botanic 
Garden,  it  is  my  intention  immediately  to  commence  the  pub- 
lication of  American  Botany,  or  a  Fulcra  of  the  United  States. 
In  this  work  it  is  my  design  to  give  descriptions  of  the  plant, 
its  uses,  etc  .  .  .  to  be  illustrated  by  a  colored  engraving  in  the 
same  manner  in  which  the  plants  of  Great  Britain  have  been 
published  by  Dr.  J.  E.  Smith.  Considerable  progress  has 
already  been  made  in  obtaining  materials  for  this  publication  " 
.  .  with  drawings  by  James  Inderwinck,  a  young  gentleman 
of  great  genius  and  taste,  and  others  by  John  [E]  Le  Conte 
Esq.,  and  new  collections  by  Mr.  Pursh." 

But  the  regents  could  not  obtain  the  necessary  public  sup- 
port. The  time  was  not  ripe  for  a  botanical  garden  at  the 
public  charge ;  and  the  existing  business  and  financial  con- 
ditions, the  losses  and  depression  from  the  prolonged  embargo, 
the  war  with  England,  the  closing  of  the  National  Bank,  fol- 
lowed by  irresponsible  banking  and  a  depreciated  currency, 
were  all  adverse  to  grants  of  money  for  such  purposes.  The 
transfer  of  the  grounds  to  Columbia  in  1814,  without  any 
provision  for  the  maintenance  or  preservation  of  the  garden, 
of  necessity  sealed  its  fate  sooner  or  later,  since  Columbia 
was  then  too  weak  to  need  it  or  to  sustain  it. 

The  Grant  to  Columbia  not  Conditioned  upon  the 
Maintenance  of  a  Botanical  Garden. 

The  act  of  18 14,  by  which  this  grant  was  made,  was 
originally  designed  mainly  for  the  benefit  of  Union  College, 
and  so  it  remained  to  the  end ;  but  four  other  institutions, 
including  Columbia,  were  finally  embraced  in  it.  The  act 
is  entitled,  *'  An  Act  instituting  a  Lottery  for  the  promotion 
of  Literature  and  for  other  pur-poses."  * 

After  providing  for  the  lottery  and  for  the  payment  from 
its  proceeds  of  $200,000,  to  Union  College,  and  $74,000  to 
other  institutions,  the  sixth  section  enacted : 

VI.  "  That  all  the  right,  title  and  interest  of  the  People  of 
the  State  in  and  to  all  that  certain  piece  or  parcel  of  land 

*  Laws,  1814,  Ch.  120.  For  its  preamble  and  provisions  for  other  colleges 
see  post,  p.  23. 


ITS  MAINTENANCE  NOT  REQUIRED. 


.  .  .  situate  in  the  9th  Ward  of  the  City  of  New  York  known 
by  the  name  of  the  Botanic  Garden  and  lately  conveyed  to 
the  People  &c.  by  David  Hosack,  be  and  the  same  is  hereby 
granted  to  and  vested  in  the  Trustees  of  Columbia  College ; 
but  this  grant  is  made  upon  the  express  condition  that  the 
college  establishment  shall  be  removed  to  the  said  tract  of 
land  hereby  granted,  or  to  lands  adjacent  thereto,  within 
twelve  years  from  this  time." 

The  seventh  section  directed  that 

"  The  Trustees  of  the  College,  within  3  months  shall  trans- 
mit to  the  trustees  of  the  other  colleges  of  the  State  a  list  of 
the  different  kinds  of  plants,  flowers  and  shrubs  in  the  said 
garden,  and  within  one  year  thereafter  deliver  at  the  said 
garden,  if  required,  at  least  one  healthy  exotic  flower,  shrub 
or  plant  of  each  kind  of  which  they  shall  have  more  than  one 
at  the  time  of  application,  together  with  the  jar  or  vessel  con- 
taining the  same,  to  the  trustees  of  each  of  the  other  colleges 
who  shall  apply  therefor." 

There  are  no  other  conditions  in  the  act.  The  grant  is  not 
of  a  botanical  garden  to  be  maintained  as  stick.  Had  that 
been  the  intention,  it  would  have  been  so  declared  in  the  act, 
as  was  done  in  the  direction  to  the  regents  in  the  act  of  1810 
(ante,  p.  9).  By  the  latter  act  the  state  reserved  the  right  to 
dispose  of  the  grounds  as  it  should  see  fit ;  and  by  the  act  of 
18 14,  it  granted  them  to  Columbia,  upon  no  other  condition 
than  that  of  removal,  as  required  by  the  above  §  6. 

The  obligation  to  distribute  duplicates  of  exotic  plants  to 
other  colleges  that  might  apply  for  them,  was  not  a  condition 
of  the  grant ;  and  though  it  imposed  an  obligation  to  preserve 
such  duplicates  for  a  year  after  notice  to  the  colleges,  it  did 
not  require  their  preservation  in  any  particular  place ;  still 
less  to  perpetuate  a  botanical  garden ;  and  after  the  expira- 
tion of  the  year,  no  duty  whatsoever  under  §  7  remained,  if  the 
duplicates  were  delivered,  or  not  applied  for.  This  very  pro- 
vision for  the  distribution  of  exotic  duplicates,  seems  to  con- 
template the  speedy  discontinuance  of  the  garden  as  a 
botanical  institution,  and  the  dispersal  of  its  most  valuable 
plants.  Considering  the  great  financial  needs  of  the  college 
as  set  forth  in  its  petition  of  1814,*  and  that  the  maintenance 

*Hist.  Columbia  Un.,  100.  1904. 


14  ELGIN  BOTANIC  GARDEN  —  LOTTERIES. 


of  a  botanical  garden  would  much  increase  its  burdens,  as 
was  well  known  to  all,  I  have  not  the  least  doubt  that  the 
college  was  not  expected  to  maintain  it,  except  as  it  might 
see  fit  to  do  so  for  the  purpose  of  sale  or  exchange ;  and  that 
the  provision  as  to  duplicates  was  inserted  on  account  of  this 
expected  disposal  of  the  plants. 

The  required  removal  to  the  garden  grounds  within  twelve 
years,  was  not  compatible  with  the  permanent  maintenance 
of  a  botanical  garden;  for  there  were  but  19^  acres  in  all, 
and  the  college  buildings,  with  suitable  approaches,  roads, 
yards,  and  a  campus,  would  require  so  much  of  this  space  as 
not  to  leave  sufficient  for  a  botanical  garden  worthy  of  the  name. 

Thus  all  the  provisions  of  the  act  of  18 14,  as  well  as  the 
circumstances  of  the  parties,  so  clearly  negative  any  duty  to 
perpetuate  a  botanical  garden,  that  it  is  difficult  to  imagine 
how  that  idea  gained  currency. 

The  journals  of  the  legislature  do  not  show  why  land, 
instead  of  money,  was  given  to  Columbia.  Dr.  Vermilea 
states  that  Rev.  Dr.  Mason,  Columbia's  provost,  who  was 
representing  her  at  Albany,  "  was  induced  to  accept  the 
garden  and  leave  to  Union  the  lotteries."* 

The  land-grant  (§  6)  seems  to  have  been  an  amendment  by 
the  senate  and  accepted  as  such  by  the  assembly, f  although 
possibly  it  was  only  the  senate's  amendment  of  §  6  that  was 
returned  for  acceptance.  The  lotteries  for  Union  College 
authorized  in  1805,  were  not  drawn  until  1814,  and  fell 
$4,000  short  of  the  authorized  $80,000,  %  and  Union  needed 
much  more  money  for  her  buildings,  which  the  lottery  of 
1814  was  intended  to  provide.  In  1805,  when  the  former 
lotteries  for  Union  were  authorized,  and  again  in  1806, 
Columbia  had  presented  to  the  legislature  urgent  memorials  for 
relief,  essentially  the  same  as  her  memorial  in  1814,  but 
obtained  nothing ;  §  and  the  same  result  might  reasonably 

*  Wilson's  Memorial  Hist,  of  New  York,  3  :  584.  1893. 
t  Assembly  Journal,  1814  :  475. 

%  Van  Sanford's  Life  of  Dr.  Mott,  140  :  Laws,  1805,  Ch.  62. 
2  Trustees'  Min.  Columbia  Col.  2  :  240,  252  ;  Assembly  Jour.,  1806  :  131, 
132;  "Assembly  Papers — Colleges"  (Albany),  pp.  75-113.  Post,  pp.  49-50. 


CONDITION  OF  REMOVAL  REPEALED.  15 

have  been  feared  if  she  insisted  on  sharing  in  the  lottery 
mainly  designed  for  the  new  colleges.  Columbia  had 
already  been  considering  the  question  of  removal ;  *  and  the 
garden  grounds  would  certainly  be  useful  to  her  at  some  time, 
•  either  for  sale  or  for  her  own  occupancy  on  removal ;  and 
her  acceptance  of  the  land  instead  of  money  would  leave 
larger  sums  for  the  other  institutions.  Some  such  considera- 
tions, no  doubt  earnestly  pressed,  probably  led  to  the  reluc- 
tant acceptance  by  Dr.  Mason  of  the  disguised  treasure, 
which  the  trustees  naturally  enough  at  that  time  but  lightly 
esteemed. 

The  Garden  in  Columbia's  Hands. 
The  grant  of  1814  encumbered  by  the  condition  of  re- 
moval, was  not  available  for  raising  money  by  sale  or  mort- 
gage, and  "  was  not  considered  by  the  trustees  an  attractive 
or  helpful  gift. "f  They  did  not  take  formal  possession  until 
October,  1816,  two  years  and  a  half  after  the  grant,  when 
repairs  for  the  winter  being  needed,  possession  was  tendered 
by  the  College  of  Physicians  and  Surgeons  and  accepted  by 
Columbia.  \ 

There  was  no  intention  of  a  continued  maintenance  of  the 
garden ;  but  it  was  thought  that  if  the  condition  of  removal 
were  repealed,  an  advantageous  sale  or  exchange  might  be 
effected.  Urgent  memorials  were  accordingly  addressed  to 
the  legislature  in  1817,  1818,  and  1819  for  the  repeal  of  that 
condition,  the  last  being  successful,  with  a  further  gift  of 
$10,000,  as  the  act  of  1814  "  had  not  been  productive,"  as 
the  preamble  recites,  "  of  the  benefit  intended."  §  The  select 
legislative  committee  that  considered  the  application  in  1819, 
reported  that  the  act  of  1814  was  intended  to  give  relief  to 
Columbia  equal  to  the  $40,000  given  to  a  sister  institution 
[-Hamilton  College]  ;  that  by  depreciation  the  grounds  were 
not  of  one  fourth  the  value  supposed ;  that  as  a  mere  botan- 

*  Moore's  Hist,  of  Columbia  Col.,  82.  1846. 
t  Hist.  Columbia  Un.,  36.  1904. 

t  Trustees'  Min.  Col.  Phys.  and  S.,  2:  Sept.  27,  1816  ;  Trustees'  Min. 
Columbia  Col.,  a  :  477-479. 

\  Laws,  1819,  Ch.  19  ;  Trustees'  Min.  Columbia  Col.,  2  :  423,  477,  493. 


i6 


THE  ELGIN  BOTANIC  GARDEN. 


ical  garden  they  would  be  an  incumbrance  rather  than  a 
benefit,  and  that  removal  was  impracticable.  That  condition 
was  accordingly  repealed,  and  also  the  seventh  section  as 
respects  duplicates.* 

The  trustees'  memorial  of  1818  states,  that  when  they  took 
possession  of  the  garden  "  the  whole  establishment  was  in  a 
state  of  dilapidation  and  decay."  f  They  made  some  repairs, 
and  in  March,  1817,  let  the  grounds  to  a  Mr.  Gentle  for  one 
year,  apparently  without  rent,  but  upon  condition  that  he 
keep  the  green  houses  and  grounds  in  order.  Renewals 
were  continued  for  several  years,  a  long  lease  being  refused 
on  account  of  "the  prospects  of  an  advantageous  exchange, 
if  the  property  were  keep  unencumbered."  { 

In  the  summer  of  1819,  Dr.  Hosack  in  behalf  of  the  Agri- 
cultural Society  applied  for  a  lease  for  a  term  of  years,  free 
from  rent,  for  "  market  gardening  "  ;  but  the  trustees  declined 
to  rent  for  a  term  of  years,  "  unless  a  source  of  revenue."  § 

In  May,  1819,  the  Committee  on  the  Botanic  Garden 
reported,  that 

"  Agreeably  to  the  wish  of  the  Trustees,  the  green-house 
plants  belonging  to  the  College  were  offered  to  and  accepted 
by  the  Governors  of  the  Hospital ;  and  the  Committee  have 
given  an  order  for  the  delivery  of  them  and  such  ornatnental 
trees  and  shrubs  as  might  be  removed  without  injury  to  the 
place."  II 

In  1823  the  grounds  were  rented  to  J.  B.  Driver  for  five 
years  at  $125  per  year  and  taxes,  the  tenant  agreeing  "to 
keep  the  grounds  and  buildings  in  order,  and  not  to  lop,  cut 
or  remove  any  trees  or  shrubbery,  or  pasture  other  than  his 
own  cattle  " ;  and  the  college  reserved  the  right  to  cancel  the 

*  Assembly  Journal,  1819  :  123,  124  ;  Trustees'  Min.  Columbia  Col.,  2  :  477, 
494.    See  post,  p.  53,  note, 
t  Ibid.,  2  :  477-479- 
t  Ibid.,  2:  441,  507. 
§  Ibid.,  2  :  515,  519. 

II  Ibid.,  2  :  507.  It  was  under  this  order,  probably,  that  the  yew  trees 
which  now  flank  the  stone  steps  leading  up  to  the  Library  Building,  were 
first  removed  from  the  Elgin  Garden  to  the  "  South  Court,"  in  Blooming- 
dale,  from  which,  seventy-five  years  later,  they  were  transplanted  to  near 
where  they  now  stand. 


LEASED  FOR  GARDENING  —  DR.  HO  SACK. 


17 


lease  in  case  of  sale  ;  also  the  right  to  remove  trees  and  shrub- 
bery, and  glass  and  frames  from  the  front  building  ;  and  the 
tenant  was  to  preserve  them  till  removed."  * 

In  September,  1825,  Dr.  Hosack  again  applied  for  a  lease, 
but  the  terms  were  not  agreed  on,  f  and  in  April,  1826,  the 
garden  was  let  to  David  Barnett,  a  seedsman,  for  ten  years, 
at  $500  per  annum,  and  taxes.  Barnett  paid  no  rent;  but 
$118  was  collected  by  a  sale  of  his  goods  in  1827,  and  the 
lease  was  surrendered.  \ 

In  the  summer  of  1828  Dr.  Hosack,  in  behalf  of  the  Horti- 
cultural society  of  which  he  was  then  president,  applied  for  a 
lease  of  the  grounds,  again  without  success.  In  his  inaugural 
address  soon  after,  he  commented  with  some  severity  on  his 
failure,  saying  that 

"  It  was  stated  to  the  trustees  that  the  society's  practical 
men  would  restore  the  establishment  to  the  condition  in  which 
It  was  conveyed  to  the  state."  § 

But  the  trustees  preferred  a  rental  rather  than  a  botanical 
garden,  and  private  responsibility  to  that  of  an  association. 

In  October,  1828,  two  leases  were  executed  to  William 
Shaw  for  21  years  from  the  following  May;  one  of  36  city 
lots  on  the  block  between  50th  Street  and  51st  Street,  and 
the  other  of  the  residue  of  the  grounds,  at  the  annual  rent  of 
$400,  repairs  and  taxes  on  the  whole,  and  also  any  assess- 
ments on  the  36  lots.  II  Shaw  occupied  and  cultivated  the 
grounds.il  In  1833  the  trustees  remitted  $100  per  year  from 
the  rental  for  three  years,  upon  Mr.  Shaw's  petition  showing 
that  the  premises  when  he  took  them  were  much  more  dilapi- 
dated than  he  supposed ;  that  he  had  expended  for  repairs  to 
dwelling-house,  grounds  and  wall,  over  $5,000;  that  much 
of  the  ground  was  not  tillable,  being  rocky  beneath  a  thin 

*  Trustees'  Min.  Columbia  Col.,  3  :  84. 
tMin.  Stand.  Com.,  Sept.  22,  1825. 

J  Trustees'  Min.,  3  :  173,  187,  248  ;  Min.  Stand.  Com.,  Oct.  26,  1827. 
g  Address  Hort.  Soc.,  Aug.  26,  1828,  p.  9. 

II  Treas.  Rept.  Columbia  Col.,  1850 ;  Trustees'  Min.,  4  :  336  ;  3  :  248. 
Hlbid.,  3  :  443,  450  ;  Min.  Stand.  Com.,  Aug.  28. 


iS 


THE  ELGIN  BOTANIC  GARDEN. 


soil,  two  acres  swampy,  and  that  he  had  received  notice  that 
the  wall  encroached  twelve  feet  on  Fifth  Avenue.* 

In  November,  1833,  Shaw  assigned  his  lease  to  John  Ward, 
a  prominent  exchange  broker  and  banker  in  Wall  Street  and 
for  several  years  president  of  the  Stock  Exchange,  who  had 
made  advances  to  him  upon  it,  and  who  held  the  lease  until 
it  expired  in  1850.  In  1835  and  1836  various  negotiations 
were  had  between  the  trustees,  who  were  anxious  to  pay  off 
their  accumulating  debt,  and  Mf.  Ward,  looking  to  a  cancella- 
tion of  the  lease,  and  the  sale  of  new  leases  of  single  lots  for 
long  renewable  terms,  at  a  nominal  rent,  and  a  division 
between  them  of  the  premiums  realized  on  the  sales.  The 
trustees  voted  to  agree  to  this,  provided  $6,000  were  first 
reserved  to  them  from  the  proceeds,  and  their  share  of  the 
residue  to  be  not  less  than  $40,000.  Mr.  Ward  wanted  26 
lots  (four  of  them  on  Fifth  Avenue),  to  be  first  reserved  for 
himself.  Other  modifications  were  proposed,  but  no  agree- 
ment could  be  reached.! 

In  1838  the  city  began  opening  streets  in  the  region  of  the 
garden.  During  the  next  25  years  the  trustees  expended 
over  $150,000  in  payment  of  assessments,  and  by  their  own 
contracts,  for  completing  the  streets  and  levelling  the  grounds 
so  as  to  be  ready  for  use.  J  In  1 850,  though  their  debt  amounted 
to  $68,000,  the  trustees,  disagreeing  with  the  standing  com- 
mittee, voted  not  to  sell  any  of  the  property  at  present.  §  In 
*  185 1,  the  long  lease  having  expired,  the  grounds  were  laid 
out  into  city  lots,  and  in  1852  it  was  resolved  to  prepare  them 
for  leasing  in  separate  lots.||  In  1856  it  was  voted  to  remove 
the  college  to  the  two  blocks  on  49th  Street,  and  Mr.  Upjohn 
prepared  plans  for  one  of  the  buildings  with  a  facade  of  280 
feet.H    But  the  expense  made  building  impracticable,**  and 

*  Trustees'  Min.  Columbia  Col.,  3  :  298,  397,  409. 

tibid.,  3  :  336,  443,  450,  454,  461,  465,  476,  477. 

tSee  Treasurer's  Reports,  and  Reports  to  Regents,  1851  to  1863. 

I  Hist.  Columbia  Un.,  123-124;  130-160.  1904. 

II  Trustees'  Min.,  4  :  357,  404. 
T[Hist.  Columbia  Un.,  129.  1904. 
**  Pine's  Half  Moon  Ser.,  2  :  47. 


CITY  LOTS  — LEASES  — INCREASED  VALUE.  19 

in  the  autumn,  the  asylum  property  on  49th  Street  was  pur- 
chased as  "  temporary  quarters,"  to  which  on  May  12,  1857, 
the  college  removed,  and  remained  there  for  40  years.*  The 
idea  of  using  the  garden  ground  for  college  buildings  was 
abandoned.  Its  rapidly  rising  value  proved  that  it  was  worth 
more  for  nursing  the  college  than  for  housing  it. 

In  1857  sixteen  city  lots  at  48th  Street  and  Fifth  Avenue 
were  sold  to  the  Dutch  Reformed  Church  for  $80,000,  the 
first  sale  of  any  part  of  the  garden  grounds.  In  1859,  a  map 
of  the  rest  was  made  in  city  lots  (No.  611,  Reg.  Office),  and 
not  long  afterwards  the  trustees  began  leasing  on  renewable 
21-year  leases  for  the  erection  of  first  class  dwellings;  and 
before  1875  the  lots  on  the  four  blocks  were  all  taken  and 
dwellings  erected.  Then,  for  the  first  time,  the  college  came 
into  the  receipt  of  "  highly  profitable  rentals,"  and  in  a  few 
years  it  passed  from  straightened  circumstances  to  comparative 
affluence,  f 

By  the  close  of  the  century,  the  property  that  was  esti- 
mated by  the  college  authorities  to  be  worth  only  from  six  to 
eight  thousand  dollars  when  received  from  the  state,  %  was 
worth  as  many  millions.  It  had  enabled  the  ill-supported 
college,  struggling  with  innumerable  difficulties  for  near  a 
century  and  a  half,  to  expand  into  a  great  university.  The 
sale  of  the  block  between  47th  and  48th  Streets  for  about 
$3,000,000  within  a  few  years  past  has  supplied  the  means 
for  the  payment  of  a  considerable  part  of  the  cost  of  this 
expansion.  The  residue  of  the  grounds,  if  sold  at  present 
prices,  would  discharge  the  remaining  indebtedness  and  leave 
a  surplus  endowment  of  several  millions.  If  these  splendid 
results  have  sprung  primarily  from  Dr.  Hosack's  courageous 
and  brilliant  enterprise,  they  are  equally  the  fruit  of  the  saga- 
cious and  heroic  tenacity  of  the  college  trustees  for  three 
quarters  of  a  century  in  holding  on  to  the  garden  property, 
and  in  resisting  the  temptation  to  purchase  present  ease  and 
freedom  from  debt  at  the  sacrifice  of  a  triumphant  future. 

The  Decline  of  the  Garden.  —  This  was  inevitable  from  the 
time  when  it  came  to  the  state  in  181 1  and  the  state  refused  to 

*Hist.  Columbia  Un.,  160.    1904.  flbid.,  igr.  J  Ibid.,  102. 


20         DECLINE  OF  THE  GARDEN  —  ENGRAVINGS. 


make  appropriations  for  its  support.  No  one  else  had  suffi- 
cient interest  and  ability  to  keep  up  the  necessary  repairs  and 
supplies.  Such  repairs  as  were  made  by  the  tenants  up  to 
the  time  of  the  lease  to  Shaw  in  1828,  were  evidently  unsub- 
stantial ;  for,  as  above  noted,  the  grounds  and  buildings  are 
repeatedly  spoken  of  as  much  out  of  repair,  deteriorated,  or 
dilapidated  (ante,  pp.  10,  16,  17). 

After  1819,  when  the  green-house  plants  were  removed, 
though  its  botanical  character  suffered,  the  trustees  aimed,  as 
the*  leases  show,  to  preserve  the  ornamental  features  of  the 
garden,  as  an  attraction  to  purchasers  or  lessees. 

The  earliest  known  engraving  of  the  garden  is  the  elegant 
one  by  L.  Simond,  published  in  the  Medical  Repository  in 
1810,  vol.  13,  p.  217.*  Another  by  Reinagle,  in  the  Catalogus 
Elginensis  of  181 1,  and  in  the  Amer.  Med.  and  Phil.  Regis- 
ter, vol.  2,  p.  I,  1814,  is  perhaps  less  attractive,  but  gives  a 
wider  view  of  the  grounds.  A  third,  much  like  the  first, 
from  a  little  different  point  of  view,  said  to  be  of  1825,  with 
a  copy  of  the  Sully  portrait  of  Dr.  Hosack,  is  given  in  the 
Magazine  of  Am.  Hist.,  16:  218,  219,  1886.  The  latter,  if 
its  date  is  correct,  indicates  the  continuance  of  ornamental 
culture  till  1825  ;  and  though  after  1819  it  was  no  longer 
maintained  as  a  botanical  exhibition,  the  survival  of  many  in- 
teresting trees,  hardy  shrubs  and  herbaceous  plants  must  have 
long  continued  to  make  the  garden  an  attractive  resort. 

The  leases  given  by  Columbia  were  all  for  agricultural 
and  gardening  purposes. f  Dr.  Hosack's  offer  in  1828  (ante, 
p.  17)  "to  restore  the  establishment,"  and  "to  renew  and 
improve  the  green-houses,"  and  Shaw's  petition  in  1833  (ante, 
p.  17),  show  that  these  buildings  were  then  standing.  I 
can  learn  nothing  certain  after  that  of  the  state  of  the  gar- 
den, or  when  the  buildings  were  removed ;  except  that 
according  to  the  tax  records,  but  one  building  remained  on 
the  block  in  1849  (the  prior  records  being  destroyed  by  fire), 

*  Lithographic  copy  in  Valentine's  Manual,  1859,  p.  204,  dated  1825. 
t  Assembly  papers,  "Colleges"  (Albany),  pp.410,  542,  590;  Petitions 
for  aid,  1820,  1824,  1826. 


THE  STATE'S  GRANT  NOT  COMPENSATION. 


21 


which  was  probably  the  dwelling  shown  in  the  cut  near  5th 
Avenue,  and  that  disappeared  from  the  records  in  1856. 
The  green-houses  were  probably  removed  some  time  during 
Shaw's  lease,  or  at  its  close. 

In  Spafford's  Gazeteer  of  New  York  for  1824  (p.  605)  is 
the  following  notice  of  the  garden  —  the  last  contemporaneous 
description  of  it  I  have  found : 

*'  It  embraces  a  great  variety  of  indigenous,  naturalized 
and  exotic  vegetables :  .  .  .  Elgin  Grove  has  as  many  visi- 
tants as  the  Botanic  Garden,  chasing  pleasure  or  catching 
knowledge." 

Dr.  Francis  in  1829,  says  of  it,  * 

"Flourishing  under  its  founder,  it  perished  under  the 
neglect  of  the  public.  It  is  not  for  me  to  speak  of  the  dis- 
grace that  the  state  sustains  by  its  failure  in  this  enterprise." 

The  Grant  of  the  Garden  to  Columbia  not  Made 
AS  Compensation  for  Her  Land  Claims  in  Vermont. 
It  has  often  been  stated  that  the  grant  of  the  garden  to 
Columbia  College  by  the  State  in  1814,  was  made  as  com- 
pensation for  her  loss  of  lands  in  Vermont  through  the  treaty 
with  that  State  in  1790.  Dr.  Moore,  President  of  the  Col- 
lege, writing  in  1846,  says  : 

"  This  treaty  .  .  .  surrendered  a  property  belonging  to  the 
college,  which  would  at  this  day  have  been  of  immense  value, 
and  in  doing  so  may  be  regarded  as  giving  to  the  college  a 
claim  of  retribution,  which  all  that  the  state  has  since  done 
for  it  does  not  fully  satisfy  ;  "  f 

thus  intimating  the  existence  of  a  claim  against  the  State, 
and  of  grants  in  partial  satisfaction  of  it. 

In  the  New  International  Encyclopedia,  5  :  49.  1903,  how- 
ever, it  is  directly  stated  that  the  legislature  granted  the  Hosack 
Botanical  Garden  to  Columbia  College 

as  a  reimbursejneiit  for  lands  in  New  Hampshire  [Vermont] 
belonging  to  the  college,  which  were  ceded  by  the  state  on 

the  settlement  of  the  New  Hampshire  grants." 

*  Address  to  N.  Y.  Hort.  Soc.  (N.  Y.  Hist.  Soc.  TracU). 

t  Moore's  Hist.  Col.  Col.,  51.    1846  ;  quoted  in  Hist.  Col.  Un.  1904  :  36. 


22 


TREATY  WITH  VERMONT  IN  jjgo. 


In  Van  Amringe's  History  of  the  College  (1876)  the  garden 
grounds  are  said  to  have  been 

"  given  to  the  college  as  a  partial  compensation  for  the  large 
estate  in  Gloucester  County,  Vermont,  which  she  had  lost 
when  Vermont  was  made  a  State."  * 

Similar  statements  are  found  elsewhere, f  and  are  occa- 
sionally heard  in  current  speech  ;  and  the  grant  has  also  been 
referred  to  as  an  exchange. % 

New  York  by  the  treaty  of  1790  ceded  to  Vermont  juris- 
diction over  her  present  territory;  she  did  not  cede,  grant  or 
transfer  any  title  to  lands ;  but  she  declared  that,  on  Ver- 
mont's agreeing  to  pay  her  $30,000,  all  claims  and  titles  to 
lands  in  Vermont  under  grants  from  the  Colony  or  State  of 
New  York  (other  than  grants  confirmatory  of  previous  grants 
by  New  Hampshire)  should  cease.  Columbia  College  at  that 
time  held  New  York  Colonial  grants,  made  from  16  to  20 
years  before,  for  about  54,000  acres  of  wild  land.  Many  others 
held  similar  grants.  Vermont  had  long  prior  to  the  treaty 
declared  all  such  grants  to  be  null  and  void,  and  by  her  citi- 
zen settlers  she  had  long  held  possession  of  at  least  most  of 
the  lands.  The  intent  of  the  treaty  was  to  extinguish  all  such 
New  York  claims  of  title  (as  an  incident  to  the  independence 
of  Vermont  and  of  her  admission  into  the  union),  and  such 
was  its  practical  effect. 

The  import  of  the  expressions  above  quoted  is,  that  this  action 
of  New  York  inflicted  great  loss  on  the  college,  and  that  the 
grant  to  her  in  1814  was  made  and  intended  as  a  reimburse- 
ment, compensation  or  retribution  for  that  act  as  a  wrong. 

On  investigation  I  am  persuaded  that  this  view  of  the 
subject  is  wholly  mistaken  ;  that  the  treaty  was  not  a  wrong- 
ful act  on  the  part  of  the  state  and  inflicted  no  substantial  loss 
on  the  New  York  land  claimants,  but  was  rather  a  benefit 
to  them  ;  and  that  the  grant  was  a  voluntary  bounty,  like  the 
state's  ordinary  grants  to  educational  institutions. 

*Hist.  Columbia  Col.,  67,  56  ;  not  found  in  the  History  of  1904,  nor  in 
Chamberlain's  "  Universities  and  their  Sons,"  i  :  573.  1898. 
t  King's  Handbook  of  New  York,  272. 

J  Columbia  Univ.  Quart.,  5  :  279.    1903  (with  Reinagle's  engraving). 


THE  GRANT  OF  1814  NOT  COMPENSATION.  23 


The  question  requires  an  examination  not  only  of  the  act  of 
1814,  but  also  of  the  origin  of  these  land  claims,  their  condi- 
tion in  1790,  and  the  circumstances  leading  to  the  treaty. 

The  Act.  — Nothing  in  the  title  or  preamble  of  the  act  of 
1814,  to  which  we  look  for  an  explanation  of  its  motive,  indi- 
cates compensation  for  an  injury  to  be  its  object,  but  quite  the 
contrary.    Its  title  is 

An  act  instituting  a  lottery  for  the  promotion  of  literature 
and  for  other  purposes."* 

> 

Its  preamble  reads  as  follows : 

•'Whereas  well  regulated  seminaries  of  learning  are  of 
immense  importance  to  every  country,  and  tend  especially  by 
the  diffusion  of  science  and  the  preservation  of  morals,  to 
defend  and  perpetuate  the  liberties  of  a  free  state :  It  is 
enacted,''  etc. 

The  first  five  sections  of  the  act  provided  for  the  lottery, 
and  for  the  payment  from  its  proceeds  of  the  sum  of  $200,000 
to  Union  College  ;  $40,000  to  Hamilton ;  $30,000  to  the  Col- 
lege of  Physicians  and  Surgeons  of  the  City  of  New  York ; 
and  $4,000  to  the  Ashbury  Colored  Church  of  New^  York. 
The  sixth  section  granted  to  the  trustees  of  Columbia  Col- 
lege 

"  All  the  right,  title  and  interest  of  the  People  of  the  State 
in  and  to  the  parcel  of  land  known  as  the  Botanic  Garden 
and  lately  conveyed  to  the  people,  etc.,  by  David  Hosack," 
etc.,  "  on  condition  of  the  removal  of  the  College  to  said 
tract,  or  to  lands  adjacent  thereto,  within  twelve  years."  f 

The  reason  and  motive  of  the  grant,  as  respects  Columbia, 
as  stated  in  the  preamble,  were  the  same  as  respects  the  other 
colleges  named,  viz.,  the  public  interest  in  the  maintenance 
of  seminaries  of  learning.  No  different  purpose  is  intimated, 
and  there  is,  therefore,  a  very  strong  presumption  against  any 
other. 

There  were  numerous  persons  in  the  same  situation  with 
Columbia,  as  respects  losses  of  Vermont  lands,  none  of  whom 
ever  received  compensation  except  from  the  fund  paid  by 

*  Laws,  1814,  Ch.  120. 

t  This  condition  was  repealed  by  Ch.  19  of  the  Laws  of  181 9. 


24  ACT  OF  17 go  FORBADE  COMPENSATION. 


Vermont  in  accordance  with  the  treaty  ;  and  it  is  not  supposable 
that  an  intended  compensation  to  Columbia,  denied  to  all 
others,  was  thus  secretly  smuggled  into  the  act  of  1814,  under 
a  deceptive  statement  of  a  different  purpose  (post,  p.  51). 

The  prior  legislation,  moreover,  and  the  history  and  con- 
dition of  the  New  York  land  claims  at  the  time  of  the  treaty, 
and  the  distribution  of  the  indemnity  fund  received  from 
Vermont,  render  the  motive  of  compensation  by  the  act  of 
1814  improbable  in  the  extreme. 

Prior  Legislation.  —  The  act  of  1790  (Ch.  18),  which* 
authorized  the  treaty,  appointed  commissioners  from  New 
York  to  meet  commissioners  from  Vermont  to  agree  upon 
terms  of  settlement,  and  expressly  declared  that, 

"  Nothing  herein  shall  be  intended  or  construed  to  give 
such  claimants  [of  lands]  any  right  to  any  further  compensa- 
tion whatever  from  this  State,  other  than  such  compensation 
which  may  be  stipulated  as  aforesaid  "  [to  be  paid  by  Ver- 
mont] . 

This  provision,  expressly  excluding  further  compensation, 
was  not  an  unadvised  or  a  hasty  one.  It  expressed  the 
deliberate  judgment  and  determination  of  the  legislature ;  it 
was  in  accordance  with  a  similar  provision  of  the  act  of  1789 
(repealed  by  that  of  1790),  and  was  enacted  after  discussions 
at  various  times  during  the  preceding  decade  concerning  a 
controversy  of  forty  years'  standing.  It  was  in  effect  a  deci- 
sion by  the  legislature  that  the  New  York  land-claims, 
whether  good  or  bad  originally,  had  become  incapable  of 
enforcement  through  the  rebellion  and  long  continued  inde- 
pendence of  Vermont ;  so  that  those  claims  were  really  worth 
only  what  could  be  obtained  from  Vermont  by  negotiation 
and  compromise,  and  should  no  longer  stand  in  the  way  of 
the  public  interests  in  the  recognition  of  Vermont's  indepen- 
dence and  admission  into  the  union. 

The  commissioners  having  agreed  upon  the  sum  of  $30,000 
to  be  paid  to  New  York,  and  Vermont  having  agreed  to  pay 
it.  New  York  declared,  as  above  stated,  that  all  claims  and 
titles  under  New  York  colonial  or  state  grants,  except  those 


CLAIM  ON  VERMONT  FUND  NOT  PRESENTED.  25 


which  confirmed  prior  grants  from  New  Hampshire,  should 
cease;  and  she  ceded  to  Vermont  her  claim  of  sovereignty 
and  jurisdiction  over  that  territory,  and  consented  that  Ver- 
mont might  be  admitted  into  the  federal  union  as  an  indepen- 
dent state.  In  1791  she  was  accordingly  admitted,  after 
seeking  admission  in  vain  for  thirteen  years.* 

In  1795,  the  exclusion  of  any  other  compensation  than  the 
fund  derived  from  Vermont,  was  again  enacted  in  the  act 
appointing  cofnmissioners  "  to  make  a  just  and  equitable  dis- 
tribution "  of  that  fund.f  Claimants  were  required  to  present 
their  claims,  and  it  was  declared 

"  that  all  who  do  not  present  their  claims  within  one  year  to 
the  Commissioners,  shall  be  precluded  from  all  compensation 
whatever  " 

Columbia  did  not  present  her  claim.  Her  name  is  not  on 
the  commissioners'  "minutes"  nor  among  the  seventy-six 
distributees, J  though  Mr.  Duane,  who  for  nearly  ten  years 
prior  to  1795  was  chairman  of  her  board  of  trustees,  presented 
his  claim,  and  his  heirs  were  allowed  his  share  of  about  five 
cents  per  acre,  on  52,500  acres.  At  the  same  rate,  Columbia's 
share,  had  she  proved  her  claim,  would  have  been  from 
$1,500  to  $2,500,  according  to  the  acreage  she  held.§  This 
was  more  than  the  land  had  cost  her,  as  the  official  fees  for 
the  patent  and  the  preliminary  surveys  were  the  principal 

*Ridpath,  Hist.  U.  S.,  366,  says  this  payment  was  for  the  purchase  of 
New  York's  claim  to  the  jurisdiction  of  the  province  of  Vermont.  But  Ver- 
mont always  refused  to  admit  that  the  New  York  land  grants  had  any  validity , 
and  hence  she  would  pay  nothing  directly  to  those  grantees  ;  but  her 
Commissioners  knew,  what  the  Act  of  1790  shows,  that  New  York  would  re- 
ceive the  money  for  the  benefit  of  the  New  York  grantees  alone. 

t  Act  of  April  6,  1795,  3  N.  Y.  Laws,  Ch.  56,  p.  578.   3  Green.  Laws,  220. 

X  See  Commiss.  Rept.,  1799,  Doc.  Hist.  N.  Y.,  4  :  1024-1025,  H.  Hall, 
Vt,  510.    See  Regents'  R^pt.  on  Boundaries,  1873,  pp.  226-228. 

\  It  is  uncertain  how  much  land  Columbia  had.  In  her  petitions  of 
1805  and  1806,  "over  100,000  acres"  are  stated  as  "  held  by  a  double  grant 
from  New  York  and  New  Hampshire."  No  double  grant  to  Columbia 
appears  in  the  list  of  49  double  grants  given  in  Doc.  Hist.  N.  Y.,  4  :  477 
478  (qto. ).  The  records  show  no  patents  to  her  from  New  Hampshire,  and 
but  two  from  New  York,  both  by  Lt.  Gov.  Colden  ;  the  first,  on  March  14, 
1770,  of  24,000  acres  at  Kingsland,  now  Washington  (Vol.  15  of  Patents,  p. 


26 


COLUMBIA'S  PETITION  NOT  A  CLAIM. 


items  of  cost,*  and  these  had  been  remitted  to  Columbia  "  as 
a  compliment  to  the  college."  f 

It  is  hardly  credible  that  a  loss  of  such  a  character,  even 
had  it  been  presented  as  a  claim  in  1814,  would  have  been 
recognized  by  the  legislature  as  a  legitimate  demand  against 
the  state,  in  the  face  of  these  three  prior  enactments  and  of 
Columbia's  failure  to  prove  her  demand  before  the  commis- 
sioners ;  or  that  ^'■compensation  "  for  her  Vermont  lands  could 
have  been  intended  by  that  act  to  be  given  to  her  without 
any  reference  being  made  to  those  statutes,  or  any  reason 
assigned  for  departing  from  them.J  But,  in  fact,  the  petition 
of  1814  did  not  present  any  such  claim,  nor  ask  compensation 
for  anything.  No  such  language  is  found  in  the  petition. 
It  presents  forcibly  and  at  length  the  urgent  needs  of  the  col- 
lege. It  appeals,  not  to  any  duty  or  obligation  of  the  legis- 
lature, but  "  to  its  magnanimity,  for  such  assistance  as  to  its 
wisdom  shall  seem  meet,"  which  is  the  ordinary  prayer  for 
public  support. §  At  the  close  of  the  petition  two  circum- 
stances are  mentioned  as  emphasizing  the  deserts  of  the  col- 
lege;  first,  that  for  30  years  "the  patronage  extended  to 
Columbia  had  been  very  limited  —  not  one  fifth  of  the  benefac- 
tions .  .  .  made  to  a  kindred  institution  "  [Union  College]  ; 
and  second,  the  loss  of  her  Vermont  lands,  as  follows : 

72),  and  the  second  on  August  16,  1774,  of  20,000  acres  near  Cambridge  & 
Johnson  (Vol.  16,  p.  391  of  Patents).  A  further  grant  on  April  6, 1774,  from 
Gov.  Tryon  personally,  by  lease  and  release,  of  10,000  acres  at  Norbury,  now 
Worcester,  the  income  from  which  was  required  to  be  applied  to  the  main- 
tenance of  Tryonian  Professorships,  is  stated  in  Pine's  Charters  of  Columbia 
College,  pp.  72,  84.  These  make  in  all  but  54,000  acres,  and  of  these  only  the 
first  and  third,  it  is  said,  are  now  known  (Hist.  Columbia  Un.,  35-36.  1904. 
See  post,  p.  52).  All  three  patents  were  covered  by  the  King's  prohibi- 
tory order  of  July  24,  1767.    See  post,  pp.  30,  41,  46,  50,  notes. 

*  The  regular  fees  were  in  all  $90. 25  per  1,000  acres,  divided  among  six 
ofiBcials,  of  which  the  governor's  share  was  S31.25  (H.  Hall's  Vt.,  71). 

t  Trustees  Min.,  i  :  134. 

%  Had  compensation  been  the  object  of  the  grant  to  Columbia,  it  would 
have  been  wholly  foreign  to  all  the  rest  of  the  act,  and  properly  the  subject 
only  of  an  independent  statute  :  and  that  purpose  not  being  indicated  in  the 
title  or  preamble  of  the  Act  of  1814,  it  would,  under  our  present  constitution , 
have  been  unconstitutional. 

§See  Petition  in  full,  Hist.  Columbia  Un.,  1904,  pp.  100,  loi. 


STATUS  OF  LAND-CLAIMS  IN  ijgo. 


27 


"  That  Columbia  College  was  once  in  possession  of  landed 
property,  which,  if  she  still  retained  it,  would  be  amply  suffi- 
cient for  her  wants,  and  would  save  your  memorialists  from 
the  afflicting  necessity  of  importuning  your  honorable  body. 
That  property  was  transferred  by  the  state  of  New  York,  on 
great  political  considerations,  to  other  hands.  It  was  entirely 
lost  to  the  college,  and  no  relief,  under  the  privations  which 
the  loss  occasioned,  has  hitherto  been  extended  to  her."* 

Had  this  been  strictly  accurate,  without  other  facts  affect- 
ing the  merits  of  Columbia's  land-claims,  a  strong  case  for 
compensation  might  have  been  urged,  except  for  the  three 
statutes  above  cited. 

But  the  real  situation  was  quite  different.  The  New  York 
grants  of  Vermont  lands  were  disputed  from  the  first,  and  in 
1790  they  had  become  wholly  unavailable  to  the  claimants 
and  practically  worthless.  For  twenty  years  the  colony  and 
state  of  New  York  had  done  all  that  was  practicable  for  their 
enforcement.  Vermont,  by  a  rebellion  and  revolution  caused 
alone  by  the  New  York  land-grants  and  the  endeavors  to 
enforce  them  by  eviction  of  the  earlier  settlers,  had  won  her 
independence  of  New  York,  and  maintained  it  for  thirteen 
years.  Since  1782  the  controversy  had  been  practically 
closed,  and  in  1790  the  state  was  justified  in  making  peace 
with  Vermont  without  liability  for  the  disappointed  expecta- 
tions of  her  citizens,  or  even  their  actual  losses,  if  there  were 
such  ;  and  this  was  the  reason  for  expressly  excluding  any 
such  liability  of  the  state,  by  the  act  authorizing  the  treaty. f 
The  subject  is  historically  so  interesting,  and  the  facts  illus- 
trating it  are  at  this  day  so  unfamiliar  to  the  majority  of 

*  Some  corrections,  as  respects  accuracy,  should  be  made  in  these  state- 
ments :  ( I )  The  College  apparently  never  settled  the  lands  or  obtained  actual 
"possession."  It  vras  the  same  with  Mr.  Duane,  Cyc.  Amer.  Biog.,  2  :  526  ; 
(2)  the  state  did  not  "transfer"  the  lands,  as  it  never  held  them;  it  did 
declare  that  claims  and  titles  under  the  New  York  colonial  grants  should 
cease;  (3)  the  state  did  "extend  relief"  in  the  ofFer  of  the  $30,000  fund, 
for  her  share  in  which,  Columbia  did  not  apply.  Why  she  did  not  apply  is 
a  matter  of  conjecture  only.  Sharing  in  the  fund  would  doubtless  have 
worked  as  an  estoppel  against  any  further  claim  in  the  future,  and  it  may 
have  been  thought  best  to  preserve  the  shadow  of  claim  still  left. 

t  Hamilton's  Works  (Lodge),  7  :  9-22.    See  post,  p.  48,  i  Kent  178. 


38 


THE  NEW  HAMPSHIRE  GRANTS. 


readers,  that  I  venture  to  state  the  most  material  of  them  in 
some  detail,  though  greatly  abridged. 

Upon  the  accession  of  the  Duke  of  York  to  the  throne  in 
1685,  the  Province  of  New  York,  granted  to  him  by  Charles 
II.  in  1664,  became  like  New  Hampshire  a  Royal  Province, 
and  its  lands  an  appanage  of  the  Crown.*  Its  charter  was 
merged  and  no  longer  operative.  When  the  controversy 
between  them  arose,  the  boundaries  and  jurisdiction  of  both 
were  alterable  at  the  King's  pleasure  ;  the  Provinces,  as  such, 
had  no  title  in  the  soil,  and  their  Governors,  in  making  grants 
of  land,  acted  as  mere  agents  of  the  Crown,  with  authority 
limited  by  its  orders  and  subject  to  its  restrictions. 

In  June,  1741,  Benning  Wentworth  was  appointed  Gov- 
ernor in  Chief  of  "  Our  Province  of  New  Hampshire,"  with 
jurisdiction  extending  westwards  '*  till  it  meets  our  other  Gov- 
ernments" e..  New  York)  and  "with  authority  to  grant 
such  lands,  tenements  and  hereditaments  as  now  are  or  here- 
after shall  be  in  our  jioiver  to  dispose  of."\ 

Understanding  the  easterly  boundary  of  New  York  to  be  a 
line  20  miles  east  from  the  Hudson  river,  the  same  as  that 
dividing  New  York  from  Massachusetts  and  Connecticut, 
Gov.  Wentworth  in  1749  granted  to  intending  settlers  the 
township  of  Bennington,  four  miles  easterly  of  that  line.  But, 
being  informed  by  Governor  George  Clinton,  of  New  York, 
that  the  east  boundary  of  his  province  was,  by  the  Duke  of 
York's  charter,  the  Connecticut  river,  and  that  Massachusetts 
had  extended  further  westward  "  by  intrusion,  and  the  neglect 
of  New  York,"  the  dispute  was  referred  (1750  to  1754)  to  the 
King.  J  On  July  20,  1764,  an  order  was  issued  by  the  Crown 
*'  declaring  the  west  bank  of  the  Connecticut  river  to  be  the 
boundary  between  the  two  provinces."  This  order  was  usually 
referred  to  by  the  Crown  Ministers  as  an  order  "  annexing" 
the  disputed  territory  to  New  York ;  because  the  district  was 
previously  regarded  as  belonging  to  New  Hampshire. § 

*Broadhead's  Hist.  N.  Y.,  2  :  424;  Colonial  Doc,  3  :  332,  360. 

tH.  Hall's  Vt.,  43-46,  476  ;  Doc.  Hist.  N.  Y.,  4  :  532. 

JN.  Y.  Hist.  Soc.  Pub.,  1869  :  281-290,  496,  502  ;  Doc.  Hist.,  4  :  329. 

\  Doc.  Hist.  N.  Y.,  4  :  574 ;  Colonial  Doc,  4:  625-627  ;  ibid.,  7  :  224  ;  ibid., 


ANNEXED  TO  NEW  YORK  IN  1764. 


29 


Governor  Wentworth  had  in  the  meantime  granted  130 
townships ;  a  few  before  the  final  submission  in  1754, 
rest  from  1761  to  1764,  after  the  close  of  the  French  war  in 
1760,  and  was  censured  by  the  Board  of  Trade  for  making  these 
grznis  ;pendente  lite.*  Some  of  them  in  1763  were  hawked 
about  the  streets  of  New  York  for  sale,  and  the  district  came 
to  be  known  as  the  "  New  Hampshire  grants."  This  coming 
to  the  notice  of  Lieutenant-Governor  Golden,  who  was  then 
acting  Governor,  he  took  up  the  matter  with  his  accustomed 
vigor,  wrote  repeatedly  in  1763  and  1764  to  the  Lords  of 
Trade,  who  had  the  matter  in  charge,  urging  a  speedy  de- 
cision, and  the  impolicy  of  extending  the  power  and  influ- 
ence of  the  New  England  governments,  "all  formed  on 
Republican  principles  in  opposition  to  those  of  the  British 
Constitution,"  and  of  diminishing  New  York,  formed  after  the 
English  model.  The  Ministry  was  already  urging  taxation 
of  the  colonies.  The  Stamp  Act  soon  followed.  Governor 
Golden  was  informed  that  the  reasons  he  suggested  "for 
making  the  Connecticut  rivei-  the  boundary,  were  adopted  " ; 
i.      as  a  new  boundary. f 

The  order  of  1764  was  thus  clearlyintended  and  understood 
by  the  Crown  to  relate-to  the  future  only.  It  cut  off  Gov. 
Wentworth's  power  to  make  further  grants,  but  did  not  deny 
his  previous  authority,  nor  avoid  his  prior  grants.  Explained 
as  annexing  \}s\t.  district  to  New  York,  it  affirmed  and  validated 
both.  Lt.  Gov.  Golden  and  the  New  York  officials,  on  the  con- 
trary, assumed  that  Gov.  Wentworth's  grants  were  invalidated, 
and  that  the  former  grantees  might  be  required  to  take  out  new 
surveys  and  new  patents  from  New  York,  paying  again  for 
fees  and  quit  rents  upon  the  New  York  scale  (more  than 
double  those  of  New  Hampshire)  or  be  disregarded  and  their 
lands  patented  to  others.  Lt.  Gov.  Golden  accordingly,  at 
once  began  issuing  patents  for  townships  in  the  "  New 

8  :  12,  193,  285,  295,  318;  H.  Hall's  Vt.,  31,  52,  99,  479:  Thompson's  Vt., 
Part  II.,  19-20;  Slade's  State  Papers,  XV. -XX.  ;  post,  pp.  38-40,  note. 

*N.  H.  State  Papers,  10  :  204 ;  Slade,  13  ;  Colonial  Doc,  8  :  331. 

tN.  Y.  Hist.  Soc.  Pub.  1876,  236,  285,  304,  316;  Colonial  Doc,  7:  562, 
642  ;  ibid.,  4  :  625  ;  Jones,  Hist.  N.  Y.,  i  :  48,  543  ;  Bancroft,  5  :  150,  225-247. 


30  SPECULATION  IN  CONFLICTING  "GRANTS. 

Hampshire  grants  "  ;  and  an  active  speculation  in  those  lands 
soon  arose,  in  which  some  of  the  most  eminent  citizens  of 
New  York  City  took  part.  Numerous  patents  were  issued  by 
Lt.  Gov.  Colden  and  Gov.  Moore  from  1665  to  1667,  most 
of  which  conflicted  with  prior  grants  from  Gov.  Wentworth, 
under  which  settlements  and  improvements  to  some  extent 
had  been  already  made.  Upon  complaint  being  made  to  the 
King,  a  further  order  in  council,  made  July  24,  1767,*  accord- 
ing to  the  repeated  directions  of  his  Ministers,  forbade  any- 
further  grants  in  that  district  "  until  his  Majesty's  further 
pleasure  should  be  made  known  "  ;  thus  suspending  the  power 
to  make  grants  within  that  territory.f 

This  order  was  never  modified.  It  was  carefully  observed 
by  Gov.  Moore,  who  refused  to  make  any  further  grants, 
though  urged  to  do  so  (Doc.  Hist.  N.  Y.,  qto.,  4:  377);  and 
he  accordingly  forebore  to  issue  the  first  patent  to  Columbia, 
which  had  been  resolved  on  by  himself  and  his  council  in 
1767,  shortly  before  he  received  warning  of  the  forthcoming 
prohibitory  order.  J  Upon  his  death,  however,  in  September, 
1769,  Lt.  Governor  Colden  and  the  succeeding  governors,  no 
doubt  under  similar  pressure,  and  allured  by  the  prospect  of 
large  official  fees,  upon  a  different  construction  of  the  King's 
order,  but  in  violation  of  its  intention  and  of  the  repeated  in- 
structions of  the  crown  ministers,  granted  from  1769  to  1774 
to  speculators  and  officials,  §  mostly  of  New  York  City,  over 

*Doc.  Hist.N.  Y.,  4  :  609, 612  ;  H.  Hall's  Vt.,  480, 88,  89 ;  Slide's  State  Pap. 

t  Rept.  Board  of  Trade,  Dec.  3,  1772,  Colonial  Doc,  8  :  331,  334,  339. 

t  Trustees'  Min.  Columbia  Col.,  i  :  122,  134;  Letters  Lord  Shelburne  to 
Gov.  Moore,  Ap.  11,  1767,  and  his  reply  ;  Doc.  Hist.  N.  Y.,  4  :  589,  593,  6ro. 

I  Barstow's  Hist.  N.  H.,  209 ;  Benton's  "Vermont's  Early  Settlers."  1894. 
Goldsbrow  Banyar,  the  Clerk  of  the  Colonial  Council,  was  the  largest  specu- 
lator, and  was  allowed  by  the  Commissioners  of  1797  for  144,600  acres.  Mr. 
Duane,  the  champion  and  defender  of  the  New  York  grants,  was  the  third  in 
amount,  being  allowed  for  52,500  acres.  Doc.  Hist.  N.  Y.,  4:  1024  ;  H.  Hall's 
Vt.,  510;  Commiss.  Rept.,  Albany,  1799. 

Colden's  grants  were  upwards  of  1,000,000  acres  ;  and  his  fees  were  from 
^25,000  to  $30,000,  occasional  abatements  being  made  ;  Dunmore's  and 
Tryon's,  each  over  half  as  much.  H.  Hall's  Vt.,  100,  109,  115  ;  Vt.  Hist.  Col- 
lection, 1 :  158.  About  half  of  Gov.  Tryon's  grants  were  confirmatory  of 
previous  patents  issued  by  Gov.  Wentworth.  See  Vt.  Hist.  Collection,  i :  152. 


ORDER  OF  1767  DISOBEYED  —  PRIOR  HISTORY.  31 


1,500,000  acres  (besides  confirmatory  and  military  grants) 
including  the  tracts  claimed  by  Columbia.  About  500,000 
acres  more,  previously  granted  by  New  Hampshire  patents, 
and  in  part  occupied,  were  granted  by  Governors  Moore  and 
Colden  prior  to  1767.  These  and  subsequent  grants  by  New 
York  Vermont  claimed  to  be  null  and  void.* 

*  Note  I.   The  Easteri,y  Boundary  of  the  Province  of  New 
York  ;  the  New  Hampshire  Grants. 

For  more  than  a  century  prior  to  1764,  jurisdiction  of  the  district  west  of 
the  Connecticut  River  to  a  line  twenty  miles  east  of  the  Hudson,  had  been 
generally  considered  and  treated  as  belonging  to  the  New  England  Colonies, 
from  which  its  settlers  had  come.  (Macauley,  Hist.  N.  Y.,  56,  57,  1829. 
Colonial  Doc,  6  :  121,  125  ;  7:  224  ;  8  :  330.  Cartwright  to  Clarendon,  N. 
Y.  Hist.  Soc.  Collection,  1869  :  86.)  With  a  possible  slight  exception  near 
that  line  in  Rensselaer  Manor  and  at  Hartford,  that  district  had  never  been 
actually  settled,  occupied  or  inhabited  by  New  York  or  by  the  Dutch.  (Gov. 
Tryon,  Colonial  Doc,  8  :  381.    H.  Hall's  Vermont,  486.) 

Gov.  Clinton's  claim  of  jurisdiction  eastward  to  the  Connecticut  River, 
was  based  on  the  Charter  of  Charles  I.  to  the  Duke  of  York,  in  1664,  renewed 
in  1674,  which  granted  to  the  Duke  (beside  other  lands)  "Long  Island 
.  .  .  abutting  upon  the  mainland  between  the  two  rivers  called  .  .  .  Connecti- 
cut and  Hudson's  River  ;  together  also  with  the  said  river  called  Hudson's 
River  and  all  the  land  from  the  west  side  of  Connecticut  River  to  the  east  side 
of  Delaware  Bay."    (Colonial  Doc,  2  :  295  ;  Broadhead  Hist.,  a:  651.) 

This  description,  it  was  claimed,  conveyed  to  the  Dnke  all  the  land  be- 
tween the  two  rivers. 

But  the  Lords  Commissioners  of  Trade  and  Plantations,  who  administered 
Colonial  affairs,  reported  In  1757,  that  this  description  "  is  so  inexplicit  and 
defective  that  no  conclusive  inference  can  be  drawn  from  it  as  to  the  extent  of 
territory  intended  to  be  granted."  (Colonial  Doc,  7:  223,  224;  Phelps' 
oration,  Bennington,  1891,  pp.  19-23 ;  N.  H.  State  Papers,  10  :  259-261  ; 
Williams  Hist.  Vt.,  2  :  15.) 

The  last  clause  does  not  convey  any  definite  tract  of  country  ;  nor  is  it  of 
itself  a  boundary,  since  it  encloses  nothing.  It  seems  purposely  to  omit  grant- 
ing the  lands  between  "  the  two  rivers,"  which  would  naturally  have  been  ex- 
pressed, if  intended. 

There  was  abundant  reason  for  the  omission.  For  the  Crown  had  already 
granted  to  the  Massachusetts  and  Connecticut  colonies  in  1628  and  1662,  that 
whole  district  from  the  Atlantic  to  the  Pacific,  extending  north  three  miles 
beyond  "any  and  every  part  of  Merrimack  river "  ;  that  is,  nearly  to  the 
latitude  of  Whitehall.  (See  location  of  the  "  Endicott"  stone,  at  Weirs'  in 
1652  ;  N.  H.  Hist.  Soc.  Collections,  4  :  194-200.  1834  ;  Mass.  Hist.  Soc.  Proc, 
18:  400  ;  Amer.  Antiq.  Soc,  7  :  15.)  The  Massachusetts  charter  EXCEPTED 
"such  lands  as  [on  Nov.  3,  1620]  were  actually  possessed  or  inhabited  by 
any  Christian  Prince  or  State."    (Hazard  St.  Pap.,  i  :  239,  604;  Hutchinson 


$2  CHARTER  OF  1664—  DUTCH  POSSESSIONS. 


Though  the  Order  of  1764  annexing  the  disputed  district 
to  New  York  was  unwelcome  to  the  settlers,  no  trouble 
would  have  arisen  had  they  been  left  unmolested  in  the 
possession  of  their  titles  and  of  the  improvements  made 

I  :  I,  160;  N.  Y.  Hist.  Soc.  Pub.,  1869:  345,  361.)  These  "actual  posses- 
sions" of  the  Dutch  were  all  that  the  Crown  after  their  capture  had  lawful 
power  to  convey. 

The  charter  was,  however,  a  part  of  the  project  to  surprise  and  capture 
these  Dutch  possessions,  and  to  "  replace''''  New  Netherland  by  New  York, 
under  the  proprietary  government  of  the  Duke.  (Denton's  "Brief  Descrip- 
tion, etc.,"  in  Gowan's  Bib.  Am.  1670  ;  J.  Miller's  "  New  York,"  1675  ;  Brod- 
head's  Hist.,  2  :  16,  38  ;  Atty.  Gen.  in  Doc.  Hist.,  4  :  338  qto. )  He  was  to  hold 
what  he  should  capture  from  the  Dutch  ;  but  as  the  precise  bounds  of  their 
"  actual  possessions  "  were  not  known,  they  were  not  defined  in  the  charter, 
but  were  naturally  left  to  be  determined  by  the  Royal  boundary  Commission 
sent  out  for  that  purpose  with  the  expedition. 

On  Stuyvesant's  surrender,  September,  1664,  the  "  actual  possessions"  of 
the  Dutch  being  all  that  the  Duke  of  York  could  acquire  by  his  capture,  as 
against  the  charters  of  Massachusetts  and  Connecticut,  the  easterly  boundary 
of  those  "actual  possessions  "  was  the  easterly  limit  of  the  Duke's  province 
of  New  York.    Regents'  Bound.  Rept.  1886,  Sen.  Doc,  71  :  405. 

The  easterly  line  of  the  Dutch  in  1664.  When  James  I.  on  Nov.  3,  1620, 
granted  to  the  Council  of  Plymouth  all  the  lands  "  from  Sea  to  Sea  "  be- 
tween the  40th  and  the  48th  parallel,  except  those  "  actually  possessed  or  in- 
habited by  some  Christian  Prince  or  State,"  no  Dutch  Colony  had  yet  been 
planted  in  that  region.  There  were  only  a  few  Dutch  traders  at  Manhattan 
and  Albany  and  along  the  banks  of  the  Hudson,  in  the  employ  of  the  New 
Netherland  Company.  That  company  had  a  charter  from  the  States  Gen- 
eral, granted  in  October,  1614,  giving  it  a  monopoly  of  trade  with  New 
Netherland  for  four  years.  (Jaques  in  Doc.  Hist.  N.  Y.,  4  :  15-17 ;  Brod- 
head's  Hist.,  i:  59-66,  134-8,  150;  Trumbull's  Conn.,  i:  546.) 

The  first  attempt  at  colonization  by  the  Dutch  was  through  the  West 
India  Company,  which  in  June,  1621,  some  months  after  the  above  grant  by 
James  I.,  and  after  the  Pilgrim  Settlement  at  Plymouth,  obtained  from  the 
States  General  a  Patent  covering  the  two  continents  from  the  Straits  of 
Magellan  to  Newfoundland.  In  May,  1623,  that  company  planted  the  first 
colony  at  Manhattan.  Their  subsequent  settlements  and  trading  posts  ex- 
tended but  little  beyond  Albany  and  along  the  banks  of  the  Hudson,  except 
a  few  acres  at  Fort  Good  Hope  (Hartford)  and  some  villages  in  southeastern 
Connecticut,  where  meeting  the  westward  emigration  of  the  Connecticut 
colonists,  controversies  arose,  which  led  to  a  treaty  at  Hartford  in  1650  be- 
tween Governor  Stuyvesant  and  the  representatives  of  the  "  United  Colo- 
nies of  New  England" — a  confederation  formed  in  1634  for  mutual  protec- 
tion and  defense.    (Bancroft's  Hist.  U.  S.,  i  :  420-422.) 

By  this  treaty  it  was  agreed  that  "  the  bounds  and  limits  between  the 
United  Colonies  and  the  Dutch  "  should  cross  Long  Island  at  Oyster  Bay ;  and 


THE  zo-MILB  LINE  FROM  THE  HUDSON. 


33 


under  their  prior  grants.*  But  in  1769,  numerous  suits  were 
brought  upon  the  New  York  grants  to  evict  the  earlier  settlers 
from  their  homes  honestly  acquired  from  New  Hampshire, 
and  practically  to  confiscate  all  the  improvements  made  under 

*N.  H.  State  Papers,  26:  pp.  vi-viii.    Williams'  Hist.  Vt.  2  ■  17,  1809. 

on  the  mainland,  should  run  "from  the  west  side  of  Greenwich  Bay  (about  15 
miles  east  of  the  Hudson)  twenty  miles  northerly  up  into  the  country ;  and 
after,  as  agreed  between  the  Dutch  and  New  Haven  ;  provided  that  said  line 
come  not  within  10  miles  of  Hudson's  River,"  and  reserving  also  to  the 
Dutch  certain  habitations  at  Hartford  ;  the  Dutch  "  not  to  build  any  house 
within  six  miles  of  said  line,"  and  the  treaty  to  "  be  kept  inviolate  by  both 
parties  until  a  full  determination  be  agreed  on  in  Europe  by  England  and 
Holland."  (Brodhead's  Hist.,  i  :  519,  621,  654)  ;  Hazard's  State  Papers 
2  :  169. 

The  line  thus  agreed  on,  though  not  complete  or  exact,  limited  the  Dutch 
to  from  ten  to  twenty  miles  east  of  the  Hudson  in  the  most  important  part 
of  the  territory  ;  and  the  provisions  for  an  indefinite  extension  of  this  line 
northwards,  "  was  a  virtual  abandonment  of  any  claim  to  lands  west  of  the 
Connecticut  river"  beyond  20  miles  at  most  east  of  the  Hudson,  and  along 
the  whole  New  England  line  extending  northwards  to  the  limit  of  the  Mass- 
achusetts colony  at  about  the  south  end  of  Lake  Champlain.  This  agreement 
was  ratified  by  the  States  General  in  1656,  and  in  the  Act  of  ratification  it  is 
described  as  "  the  line  of  division  between  New  Netherland  and  New  Eng- 
land." So  in  the  Commission  to  Colve,  the  Dutch  Governor,  appointed 
upon  the  recapture  of  the  province  in  1673,  this  treaty  is  again  referred  to  as 
fixing  the  boundary  npon  New  England.  (Colonial  Doc,  i :  609,  611  ;  2  : 
228,  609.  Brodhead's  Hist.,  i  :  519,  621.  Bancroft's  Hist.  U.  S.,  2  :  295-297 
(map).  Smith's  Hist.  N.  Y.,  i  :  20,  26,  35-38.  H.  Hall's  Vt.,  14-28,  483,  484. 
Hazard's  State  Pap.,  2  :  549  ;  O'Callahan's  N.  Y.  2 :  277.  Regent's  Rept.  on 
Bounds.,  1857  ;  pp.  38,  39.) 

England  did  not  ratify  the  treaty  because  the  Crown  was  unwilling 
thereby  to  admit  that  the  Dutch  in  New  Netherland  had  any  right  at  all. 
They  were  regarded  as  intruders.  But  the  States  General  never  withdrew 
its  ratification  ;  the  treaty  of  1650  remained  in  force  by  its  own  terms,  and  its 
effect  as  an  acknowledgment  of  the  eastern  limit  of  the  "  actual  possessions  " 
of  the  Dutch  was  unaffected.  The  exception  in  the  Massachusetts  Charter 
of  1628  was  in  fact  of  much  less  extent  than  was  allowed  by  this  treaty  ;  for 
that  exception  referred  to  the  conditions  existing  on  November  3,  1620,  when 
the  '■^actual  possessions  "  of  the  few  Dutch  traders  along  the  Hudson  were 
far  short  of  the  treaty  line,  (i  Hutchinson,  160.)  From  every  point  of  view, 
therefore,  the  legal  right  and  title  of  Massachusetts  in  1664  under  her  charter 
extended  at  least  to  the  20-mile  line  east  of  the  Hudson,  as  the  extreme  limit 
of  the  "actual  possessions"  of  the  Dutch,  which  was  consequently  the  ex- 
treme eastern  limit  also  of  the  lawful  jurisdiction  of  the  province  of  New 
York. 


\ 


34  ROYAL  BOUNDARY  COMMISSION,  1664. 


them,  except,  such  allowances  therefor  as  the  later  New  York 
grantees  might  choose  to  make.  On  the  trials  at  Albany  in 
1770,  the  earlier  grants  were  rejected  as  evidence,  both  on 
technical  grounds  and  on  the  ground  of  Gov.  Wentworth's 

The  charter  to  the  Duke  of  York  in  1774  was  in  the  identical  words  of  that 
of  1664,  of  which  it  was  merely  a  reissue,  designed  to  cure  any  defects  in  the 
Duke's  title  arising  from  the  Crown's  want  of  possession  when  the  first 
charter  was  granted,  or  from  the  Dutch  recapture  of  New  Netherland  in  1673. 
It  undid  nothing  done  under  the  former  charter,    i  N.  Y.  Colonial  Laws,  104. 

The  20-Tnile  line  adopted  by  New  York.  The  expedition  for  the  capture 
of  New  Netherland  was  accompanied  by  a  Royal  commission  of  four  persons, 
of  which  Gov.  Nicolls  was  the  head.  This  commission  was  authorized  to- 
settle  disputes  and  to  determine  boundaries,  which  were  to  "continue  and 
be  observed  "  until  otherwise  determined  by  the  crown.  (Colonial  Doc,  3  : 
51-53.  64,  no,  117.  171.  241 ;  7  :  597.  H.  Hall's  Vt.,  31.)  Their  determina- 
tions were  never  changed,  except  to  correct  errors  of  detail. 

In  December,  1664,  this  commission  with  Gov.  Nicolls,  adopting  nearly 
the  easterly  line  of  the  Hartford  treaty  of  1650,  agreed  with  Connecticut 
upon  a  uniform  parallel  line  20  miles  east  of  the  Hudson,  as  the  line  of 
division.  Broadhead's  Hist.  2  :  54.  As  reduced  to  writing,  the  treaty  was 
erroneous  in  location  and  direction.  (Colonial  Doc,  3:  51-64,  112,  125; 
H.  Hall's  Vt.,  24-28.)  These  errors  were  corrected  by  the  commission  ap- 
pointed by  Gov.  Dongan  in  1683,  so  as  "  to  answer  to  the  true  intention  of 
the  first  agreement.'''  (Colonial  Doc,  4  :  623-630  ;  Smith's  Hist.  N.  Y.,  i : 
38,  285-288. )  The  corrected  line  ran  20  miles  distant  from  the  Hudson  north- 
wards and  parallel  thereto,  "as  far  as  the  Connecticut  colony  doth  extend, 
that  is,  to  the  southerly  line  .}f  the  Massachusetts  colony  ; "  thus  recognizing 
also,  as  did  Nicolls'  agreement,  the  equal  westerly  extent  of  Massachusetts. 
(Colonial  Doc,  4  :  623-630.)  This  report  was  confirmed  by  Gov.  Dongan 
and  his  Council  in  1684 ;  by  the  Crown  (after  Massachusetts'  new  charter) 
in  1700  (Colonial  Doc,  7  :  776);  again  ratified  by  the  N.  Y.  Legislature, 
by  its  Act  of  June  25,  1719,  wherein  all  the  boundaries  are  recited  (i  Colonial 
Laws,  1039-1043)  ;  again  confirmed  by  the  Crown  in  1723  (Colonial  Doc,  5  : 
698),  and  the  work  finally  completed  in  1731.  As  respects  Connecticut,  this 
line  has  never  since  been  questioned.    N.  Y.  Hist.  Soc.  Pub.,  1868,  p.  223. 

The  same  line  applicable  to  Massachusetts.  In  his  letter  to  the  Duke  of 
York  in  November,  1665,  Gov.  Nicolls  wrote  that  the  agreement  with  Con- 
necticut "was  made  by  virtue  of  her  precedent  patent "  ;  that  is,  on  account 
of  her  superior  rights  under  her  prior  charter  and  the  Hartford  treaty  of  1650, 
of  which  that  agreement  was  in  fact  a  recognition  ;  that  it  was  "a  leading 
case  of  equal  justice  and  of  great  good  consequence  in  all  the  colonies,  .  .  . 
so  that  to  the  east  of  New  York  and  Hudson's  River  nothing  considerable  now 
remains  to  your  royal  highness  except  Long  Island  and  twenty  miles  from 
any  part  of  Hudson  River."  (Colonial  Doc,  3:  51,  64,  106,  110-117,  170, 
235;  N.  Y.  Hist.  Soc.  Pub.,  1869:  76,  86.) 

From  these  expressions  it  is  plain  that  Gov.  Nicolls  considered  that  the 


TRIALS  AND  JUDGMENTS  OF  EVICTION. 


35 


alleged  lack  of  authority  to  make  them,  and  judgments  of 
ejectment  were  accordingly  entered.* 

The  rulings  of  the  Court  in  these  cases  were  probably  tech- 
nically correct  upon  the  evidence  presented.   The  proper  evi- 

*See  Small  vs.  Carpenter,  etc.,  Benton's  "  Vermont's  Early  Settlers,  "p.  60; 
Narrative  of  Proceedings, e\.c.,  N.  Y.  Assembly  Journal  Supplement,  1773  :  8. 

determination  of  the  western  bounds  of  Connecticut  applied  equally  to  Mas- 
sachusetts, the  conditions  in  each  case  being  the  same.  Her  charter  rights 
were  the  same  ;  she  was  a  party  to  the  treaty  of  1650 ;  the  Dutch  possessions 
approached  Massachusetts  certainly  no  further  eastward  than  they  ap- 
proached Connecticut,  and  Massachusetts  had  already  settled  several  towns 
west  of  the  Connecticut  River.  The  Commissioners  were  apparently  ex- 
pecting to  make  the  same  agreement  with  Massachusetts,  but  the  latter  col- 
ony refused  to  treat  with  the  Commission  because  unwilling  on  principle  to 
admit  its  authority  to  bind  them.  (Bancroft's  Hist.  U.  S.,  2  :  78-84  ;  Hutch- 
inson's Hist.,  1  :  229-257.  See  Pope's  West.  Mass.,  Berkshire  Book,  i  : 
49-95.  1982.) 

The  Commission,  however,  in  its  report  in  1665-6,  expressly  state  that 
they  "  find  the  just  limits  of  Massachusetts  "  to  be  the  same  20-mile  parallel 
east  of  the //^Mtfiwz.  (Colonial  Doc,  3  :  110-112. )  That  Massachusetts  had 
the  same  westward  extent  as  Connecticut,  was  also  recognized  by  Gov.  Nic- 
olls  and  the  Commission,  in  the  agreement  with  Connecticut  itself,  by 
making  the  latter's  western  boundary  line  run  northerly  "/o  the  line  of  the 
Massachusetts  Bay."    (Colonial  Doc,  3  :  51-64.) 

The  report  of  the  Dongan  Commission  by  the  use  of  similar  language,  and 
the  numerous  confirmations  of  that  report  both  before  and  after  the  new 
charter  of  Massachusetts,  as  above  noted,  also  directly  recognized  the  equal 
westward  extent  of  Massachusetts.  In  the  Acts  also  of  the  Colonial  Legis- 
lature of  Nov.  I,  1683,  and  Oct.  i,  1691  (i  Colonial  Laws,  123,  267)  entitled 
"  An  Actio  divide  this  Province  and  Dependencies  into  shires  and  counties," 
the  same  limit  is  recognized  by  implication,  by  omitting  any  reference  to 
the  Connecticut  River  or  to  any  lands  approaching  it  in  the  description  of 
Albany  County  on  the  east  side  of  the  Hudson,  but  bounding  it  on  the  south 
by  Dutchess  County  "  running  eastward  twenty  miles  into  the  woods,  "with- 
out indicating  that  Albany  County  extended  any  further  eastward.  The 
title  of  the  Act  and  the  description  of  other  counties  show  that  the  whole 
territory  of  the  province  was  intended  to  be  divided  up.  These  numerous 
recognitions  and  confirmations  of  the  20-mile  line  by  New  York  and  by  the 
Crown  seem  to  be  conclusive  evidence  of  the  general  understanding. 

The  absence  of  an  express  agreement  between  Massachusetts  and  the 
Commission  was  immaterial  ;  because  (a)  no  such  agreement  was  required  ; 
{b)  the  prior  rights  of  Massachusetts  rested  upon  her  charter  of  1628,  and 
upon  the  narrow  limits  of  the  "actual  possessions  "  or  "  inhabitancy  "  of  the 
Dutch  east  of  the  Hudson  ;  and  {c)  because  the  Commission  in  fact  found 
and  reported  the  20-mile  line  to  be  her  "just  limits  "  in  a  report  probably 
filed  in  the  Plantation  Office  (Colonial  Doc,  3:  110,  112;  see  "Represen- 


36        20-MILE  LINE  APPLIED  TO  MASSACHUSETTS. 


dence  for  the  defence  was  not  at  hand,  nor  easily  procurable. 
But  the  result  was  none  the  less  a  fatal  mistake.*  For  it 
subjected  to  the  call  of  a  few  land  speculators  the  whole 
power  of  the  local  executive  for  the  enforcement  of  unjust, 

*  Mag.  Am.  History,  23  :  143-5. 

tation,  etc.,"  of  the  N.  Y.  Council,  in  June,  1763,  N.  Y.  Hist.  Soc.  Pub., 
1869:  240),  which  finding  the  Crown  never  disapproved  of,  but  uniformly 
adhered  to  for  near  a  century  afterward,  until  the  order  of  annexation  in 
1764.  Even  the  Duke  did  not  try  to  change  it.  (Colonial  Doc,  3  :  231,  236. 
1676.) 

The  20-ntile  line  adopted  by  the  new  charter  of  Massachusetts.  The 
first  charter  of  Massachusetts  was  annulled  in  September,  1684.  King  William 
on  October  7,  1691,  granted  her  a  new  charter  as  a  Royal  Province,  '■^ex- 
tending towards  the  South  Sea  westwards  as  far  as  our  colonies  of  Rhode 
Island,  Connecticut  and  the  Narragansett  Country''':  evidently  meaning  as 
far  westward  as  those  three  provinces  extend  ;  adopting  her  long  recog- 
nized westward  extent  as  co-terminous  with  Connecticut.  (Smith's  N.  Y., 
1 :  285  ;  Hutchinson's  Mass.,  2:7.) 

The  Duke  of  York  having  meantime,  in  1685,  ascended  the  throne  as  James 
II.,  his  individual  title  was  merged  in  the  Crown  ;  the  charters  of  1664  and 
1674  were  thereby  extinguished,  and  the  province  of  New  York  became  a 
part  of  the  Crown  domain  (Colonial  Doc,  3  :  322,  361  ;  Brodhead's  Hist.,  2  : 
424  ;  Benton's  Vt..  63,  76).  In  1688  he  annexed  the  whole  province  to  New 
England,  to  form  the  Dominion  of  New  England  in  America,"  under 
Andros  as  Governor,  (i  Colonial  Laws,  216,221;  Colonial  Doc,  3:  537; 
Brodhead's  Hist.,  2  :  447,  500.)  Soon  after,  during  the  English  revolution, 
the  Dominion,  contrary  to  King  William's  intent,  was  disrupted  by  revolu- 
tion and  the  mutual  secession  of  its  members.  But  the  King  accepted  the 
situation  and  in  1689  appointed  Sloughter  governor  of  the  "province  of  New 
York  and  the  territories  depending  thereon,"  without  any  designated 
boundaries  (Colonial  Doc,  3:  623);  thus  doubtless  reconstituting  the 
Province  as  it  previously  existed,  with  its  Eastern  limits  as  defined  by  the 
Nicolls  Commission. 

More  than  70  years  afterward,  Lt.  Gov.  Colden  in  support  of  New  York's 
claims  eastward  to  the  Connecticut  River,  urged  that  by  its  new  charter 
Massachusetts  was  meant  to  extend  only  to  Connecticut  River.  Mr.  Duane 
argued  that  it  was  meant  to  extend  to  the  Connecticut  colony,  i.  e.,  to  its 
easterly  line  only.  (N.  Y.  Hist.  Soc.  Pub.,  1876  :  303  ;  Ibid.,  1870  :  72.)  The 
objections  to  both  contentions  are  insuperable.  Both  disregard  the  natural 
reading  and  meaning  of  the  charter,  by  which  the  province  is  to  extend  as 
far  as  the  three  colonies  ;  not  to  a  river,  nor  to  one  colony  alone  ;  but  as  far 
as  all  three.  The  three  abut  upon  the  southerly  side  of  Massachusetts  and 
hence  could  not  possibly  form  her  westerly  boundary  :  and  the  westward 
extent  of  the  three,  can  only  mean  as  far  as  the  three  extend  westerly.  Mr. 
Duane's  contention  would  moreover  limit  the  province  to  the  meridian  of 


ATTEMPTED  EVICTIONS  A  FATAL  MISTAKE.  37 


and  in  many  cases,  inhuman  decrees.  It  stung  the  settlers 
to  desperation ;  offended  the  instincts  of  humanity ;  turned 
the  sympathies  of  the  disinterested  everywhere  largely  in 
favor  of  the  settlers,  which  their  subsequent  violence  and  ir- 

Worcester  and  leave  two  thirds  of  its  former  westward  extent,  including 
Springfield  founded  in  1636  and  numerous  towns  on  both  sides  of  the  river 
■without  any  government  at  all.  The  actual  exercise  of  full  governmental 
jurisdiction  over  the  whole  territory  and  the  settlement  of  towns  up  to  the 
20-mile  line  without  question  during  a  half  century  afterwards,  prove  the 
contrary  intent  of  this  charter,  and  the  groundlessness  of  both  contentions. 

Gov.  Sloughter  soon  after  the  new  charter  reported  the  "  great  narrow- 
ness "  of  his  province.  (Colonial  Doc.,  3:  628;  Regents'  Bound.  Rept., 
1873,  p.  312.)  Gov.  Hunter  in  1720,  in  reply  to  enquiries  by  the  Board  of 
Trade,  stated  that  New  York  was  bounded  "east,  by  a  parallel  20  miles 
distant  from  the  Hudson."  (Colonial  Doc,  5  :  555.)  In  1738  Lt.  Gov. 
Golden,  then  Su7-jeyor  General,  answering  special  enquiries,  reported  its 
northerly  boundary  as  running  "east — from  [L,ak.e  Ontario]  along  the 
bounds  of  Canada  [not  then  determined]  to  the  Colony  0/ Massachusetts  Bay, 
and  thence  southerly  along  the  boundaries  of  Massachusetts  Bay  and  the 
Colony  of  Connecticut  to  the  [Long  Island]  Sound ' '  :  stating  also  that  the 
boundary  of  Massachusetts  was  disputed  everywhere,  but  without  mention- 
ing in  what  respects  or  to  what  extent,  it  was  disputed  (Doc.  Hist.,  4  :  177 
(qto.  115).  Colonial  Doc,  5;  555,  600 ;  6 :  125.  H.  Hall's  Vt,  31-37); 
showing  that  Massachusetts  was  then  understood  to  extend  north  to  Canada, 
and  that  her  western  boundary  was  understood  to  be  a  continuous  southerly 
line  from  Canada  to  and  along  the  western  line  of  Connecticut  to  the  Sound. 
The  Vermont  part  of  Massachusetts  annexed  to  New  Hampshire.  In 

1740,  upon  a  controversy  as  to  boundaries  between  New  Hampshire  and 
Massachusetts,  it  was  determined  by  the  Crown  (unjustly,  says  Bancroft,  3 
Hist.  U.  S.,  p.  382)  that  the  northerly  line  of  Massachusetts  should  cross  the 
Merrimack  River  three  miles  north  of  Pawtucket  Falls  [Lowell]  and  run 
thence  westerly  (as  at  present)  "  to  his  Majesty's  other  Governments."  This 
new  boundary  line  was  soon  after  run  to  within  20  miles  of  Hudson  River, 
where  it  has  since  remained,  being  confirmed  by  agreement  of  the  two  prov- 
inces in  1773.  (N.  Y.  Hist.  Soc.  Pub.  (1870),  pp.  121-122  ;  do.  (1869),  324.) 
Both  colonies  being  then  merely  Royal  provinces,  the  King  could  change 
their  boundaries  at  his  pleasure. 

The  Crown,  thereupon,  appointed  Benning  Wentworth  Governor  of  New 
Hampshire  (running  north  to  Canada) ;  and  his  commission,  dated  June  3, 

1741,  extended  his  jurisdiction  "  westward  until  it  meets  with  our  other 
governments."  (4  Doc.  Hist.  532  ;  H.  Hall,  Vt.  App.,  476.)  The  southern 
part  of  what  is  now  Vermont  was  thus  transferred  from  Massachusetts  to  New 
Hampshire.  The  change  of  jurisdiction  did  not  afifect  its  western  boundary, 
which  remained  as  before,  a  line  20  miles  east  of  the  Hudson  northwards  to 
Lake  Champlain.    Benton's  Vt.,  68. 

The  new  charter  of  Massachusetts  gave  express  power  to  grant  all  lands 


38  ANNEXATION  TO  NEW  HAMPSHIRE,  1741. 


regularities,  and  riots  did  not  wholly  destroy  ;  and  it  committed 
New  York  to  a  false  and  difficult  position,  which  she  never 
retrieved  until  the  Treaty  of  1790.  It  moreover  impressed 
the  Vermont  settlers  with  such  an  indelible  sense  of  wrong, 

embraced  in  the  former  charter,  as  theretofore.  New  York  in  December, 
1786,  ceded  to  Massachusetts,  in  compromise  of  her  New  York  land  claims, 
all  preemptive  rights  in  a  tract  of  land  in  Western  New  York  equal  to  the 
area  of  Massachusetts.  Regents'  Bound.  Rept,  1886  (Sen.  Doc.  71),  402- 
417.  N.  Y.  Laws,  2  :  3,  293,  Ap.  28,  1786.  Benton's  Vt.,  174.  Hotchin's 
West.  N.  Y.,  3-8,  1848.  N.  Y.  Laws,  Acts  of  Nov.  12,  1784,  Ap.  28,  1786, 
Mch.  24,  1795.    Benton's  Vt.,  174.    Phelps  and  Gorham's  Purchase,  p.  136. 

Until  the  adjudication  of  1740  it  had  not  been  supposed  that  her  new 
charter  had  changed  the  northerly  extent  of  Massachusetts.  Hutchinson 
(Hist.  Mass.,  vol.  2,  p.  5)  says  the  new  province  contained  "the  whole  of 
the  old  colony  without  any  deduction  or  reserve.^'  During  nearly  half  a 
century  after  the  new  charter,  Massachusetts  had  been  in  possession  of  that 
district,  as  under  her  first  charter,  from  the  Merrimack  westward ;  she  had 
granted  lands  on  the  southern  border,  settled  towns  west  of  the  Connecticut, 
and  had  built  Fort  Dummer  at  Brattleboro  in  1724  (the  first  settlement  in  Ver- 
mont), and  continuously  maintained  that  fort  as  a  defence  against  the  Indians. 

North  of  the  former  Massachusetts  line  the  country  was  sparsely  inhab- 
ited by  branches  of  the  Algonquin  Indians,  mortal  enemies  of  the  Iroquois 
on  the  west  side  of  Lake  Champlain.  The  territory  was  claimed  by  the 
French,  and  dominated  by  their  fortresses  at  Ticonderoga  and  Crown  Point. 
In  1731  they  planted  a  settlement  on  the  east  side  of  the  lake  at  Chimney 
Point,  in  Addison,  Vt.  (B.  H.  Hall's  Vt.,  24),  and  held  the  forts  until  1759, 
when  they  were  abandoned  near  the  close  of  the  French  and  Indian  War,  all 
Canada  being  ceded  to  England  by  the  treaty  of  Paris  in  1763,  22  years  after 
the  date  of  Gov.  Wentworth's  commission.  (See  map,  Bancroft's  Hist. 
U.  S.,  2 :  297.)  Thus  no  part  of  what  is  now  Vermont  was  at  the  date  of  that 
commission,  or  previously,  under  the  ^'■government''''  of  New  York.  The 
Lords  of  Trade,  in  reviewing  this  whole  matter  in  1772,  say  that  "-no  establish- 
ments were  made  by  New  York  "  [north  of  the  present  line  of  Massachu- 
setts] '^competent  to  the  exercise  of  any  regular  jurisdiction."  (Colonial 
Doc,  8:  331.    Doc.  Hist.  4:  488.) 

From  the  date  of  Gov.  Wentworth's  commission  in  1741  until  the  King  s 
order  of  1764  the  whole  territory  now  constituting  Vermont  was  therefore 
considered  and  treated  by  the  Crown  and  its  responsible  ministers  as  a  part 
of  the  province  of  New  Hampshire,  and  never  as  appertaining  to  New  York. 
By  orders  of  the  Crown  in  1744,  and  again  in  1749,  New  Hampshire  was  re- 
quired to  assume  the  support  of  Fort  Dummer  as  "having  lately  fallen  within 
the  limits  of  New  Hampshire  {'^.  Hall's  Vt.,  48,  477) ;  and  in  1752  Mr.  Murray, 
Solicitor  General,  afterwards  Lord  Mansfield,  in  reference  to  a  tract  of  about 
44,000  acres  of  land  west  of  Connecticut  River  set  ofi"  to  Connecticut  by 
Massachusetts,  reported  that  "by  the  determination  of  the  boundary  line  in 
1738,  that  tract  is  become  a  part  of  New  Hampshire."    (Doc.  Hist.,  4 :  547- 


GOV.    WENTWORTH'S  GRANTS  VALID. 


39 


and  of  distrust  of  the  New  York  Courts,  that  none  of  New 
York's  subsequent  overtures  of  peace,  of  amnesty,  and  of 
confirmation  of  titles  could  prevail  on  them  to  put  themselves 
again  in  her  power,  by  submitting  voluntarily  to  her  authority 
or  to  the  jurisdiction  of  her  courts.    It  thus  closed  the  doors 

548.)  And  in  1757  the  report  of  the  Lords  of  Trade,  acting  upon  the  com- 
plaints of  Governor  Hardy,  of  New  York,  recommended  that  the  western 
boundary  of  Massachusetts  should  be  a  line  20  miles  east  of  the  Hudson 
running  "northerly  to  a  point  20  miles  due  east  from  the  Hudson,  on  that 
line  which  divides  the  province  of  New  Hampshire  and  the  Massachusetts 
Bay"  (Colonial  Doc,  7:  223,  224;  Smith's  Hist.  N.  Y.,  2:  303-309;  H. 
Hall's  Vt.,  38);  showing  that  New  Hampshire  was  considered  and  treated 
by  the  Lords  of  Trade  and  other  Crown  officers  as  extending  westward,  like 
Massachusetts,  to  within  20  miles  of  the  Hudson  on  the  westerly  line  as  run 
in  1740-1741. 

The  same  report,  in  view  of  the  defective  description  of  the  bounds 
of  the  provinces  in  the  charters,  says  that  the  partition  line  should  be 
determined  "upon  consideration  of  the  actual  and  ancient  possession  of 
both  ";  that  they  had  therefore  "had  recourse  to  such  papers  in  our  office  as 
might  show  the  actual  and  ancient  possession,  .  .  .  and  as  it  appears  in 
several  of  them,  almost  as  old  as  the  said  grants  that  Massachusetts  had  in 
them  been  understood  to  extend  within  20  miles  of  Hudson's  River,  and  that 
many  settlements  had  been  made  so  far  to  the  westward  .  .  .  and  as  that  evi- 
dence coincides  with  the  general  principle  of  the  agreement  between  New 
York  and  Connecticut,"  the  report  recommends  the  20-mile  line  of  division. 

Numerous  maps,  from  1688  to  1770  including  Mitchell's,  "the  most 
authoritative"  (Smith's  Hist.  N.  Y.,  i:  226),  prepared  in  1755  under  the 
direction  of  the  Lords  of  Trade  from  documents,  maps,  and  charts  and  sur- 
veys in  the  Plantation  Office,  show  the  limit  of  New  York  to  be  a  short 
distance  east  of  the  Hudson,  and  New  England  with  New  Hampshire  ex- 
tending westward  to  Lake  Champlain  and  thence  southerly  to  Long  Island 
Sound.  (See  H.  Hall's  Vt.,  50-53  and  frontispiece  ;  Bancroft's  Hist.  U.  S., 
2  :  297  ;  same  description  of  bounds  in  Douglas'  N.  Am.,  2  :  230.  1755.) 

From  the  above  it  sufficiently  appears  that  at  the  time  of  the  capture  of 
New  Netherlands  in  1664,  the  Dutch  held  no  "  actual  possessions  "  east  of  a 
parallel  line  20  miles  distant  from  the  Hudson  along  the  whole  western 
border  of  New  England  ;  that  the  rightful  jurisdiction  of  New  York  never, 
until  the  order  of  1764,  extended  further  eastward  than  that  line  ;  but  that 
the  soil  and  jurisdiction  to  the  east  of  it  belonged  to  Massachusetts  and  Con- 
necticut under  their  prior  charters,  and  that  to  the  eastward  of  the  same 
line.  New  York  had  no  established  government  at  the  time  Gov.  Wentworth 
was  commisssioned  in  1741,  and  that  the  latter's  grants  to  the  west  of  Con- 
necticut River  were  authorized  and  valid. 

The  district  of  the  New  Hampshire  grants  annexed  to  New  York.  The 
order  of  July  20,  1764,  making  the  west  bank  of  the  Connecticut  TO  BE  the 
boundary  between  New  York  and  New  Hampshire,  was  received  in  New 


40    THE  GRANTS  FIRST  ANNEXED  TO  N.   Y.  IN  1764. 


of  peace,  and  the  only  logical  end  was  the  subjugation  or 
the  independence  of  the  settlers. 

The  sheriff's  efforts  during  the  following  eight  years  to 
enforce  these  and  similar  judgments,  sometimes  with  an 

York  in  April,  1765.  It  was  not  a  direct  answer  to  the  enquiries  submitted 
to  the  Crown  ten  years  before.  It  was  clear  as  respects  the  future,  but  not 
clear  as  respects  the  past.  The  New  York  officials  understood  it  to  apply  to 
the  past,  and  thus  to  invalidate  the  prior  grants  of  Gov.  Wentworth.  But 
the  Crown  had  no  such  intent.  For  over  20  years  it  had  treated  the  district 
as  a  part  of  New  Hampshire,  and  authorized  grants  by  its  Governor  accord- 
ingly. It  could  not  invalidate  these  grants  without  gross  injustice,  but  it 
could  change  the  jurisdiction  for  the  future  by  making  the  boundary  (thence- 
forth) TO  BE  the  Connecticut  River.  Ante,  p.  28,  note.  Thus  George  III, 
by  a  discretionary  but  arbitrary  order,  annexed  this  district  to  New  York, 
as  James  II,  by  a  similar  arbitrary  order  in  1688,  had  annexed  the  province 
of  New  York  to  New  England.    Neither  order  was  long  successful. 

Had  the  subsequent  instructions  of  the  Crown  ministers  been  sent  with 
the  original  order,  all  trouble  would  probably  have  been  avoided.  But  it  was 
not  until  after  trouble  had  arisen  from  the  issuing  of  conflicting  grants,  that 
positive  instructions  were  given  to  the  Governors  that  prior  settlers  under 
Governor  Wentworth's  grants  must  "not  be  molested"  (Lord  Shelburne  to 
Gov.  Moore,  Dec.  11,  1766,  and  Ap.  11,  1767  ;  Colonial  Doc,  7  :  917  ;  H.  Hall's 
Vt.,  88-90),  and  that  the  order  of  July  20,  1764,  only  "  annexed  "  the  district 
in  question  to  New  York.  (See  letters,  L,ord  Hillsborough  to  Gov.  Moore, 
Feb.  25,  1768,  Colonial  Doc,  8:  12  ;  to  Lieut.  Gov.  Golden,  Dec.  9,  1769, 
Colonial  Doc,  8  :  193,  206  ;  to  Gov.  Tryon,  describing  the  district  as  "here- 
tofore CONSIDERED  AS  A  PART  ofNew  HAMPSHIRE,  but  which  was  annexed 
to  New  York  by  his  Majesty's  order  in  Council  of  July  20,  1764."  (Colonial 
Doc,  8  :  285,  317,  318,  331,  332. )  That  order  was  always  referred  to  and  in- 
terpreted by  the  Crown  officers  in  that  sense,  which  necessarily  imported 
that  the  disputed  district  was  previously  within  the  jurisdiction  of  New 
Hampshire  and  not  within  that  of  New  York  ;  that  the  prior  titles  under  Gov. 
Wentworth  were  not  affected  by  it,  and  that  the  settlers  under  them  should 
not  be  molested,  as  expressly  enjoined  upon  the  Governors  by  Lords  Shel- 
burne and  Dartmouth.  (Doc.  Hist.,  4  :  476,  559  ;  7  :  917.  H.  Hall's  Vt., 
88,89,119.  Colonial  Doc,  8  :  339,343,356,357.  Macauley's  Hist.,  408,  414. ) 
Thus,  the  Lords  of  Trade  say  that  by  the  order  of  July  24,  1767,  "  his  Majesty 
was  pleased  to  declare  that  no  part  of  the  land  lying  on  the  west  side  of 
Connecticut  River  within  that  district  claimed  by  New  Hampshire,  should 
be  granted  till  his  Majesty's  further  pleasure  was  known.  (Colonial  Doc, 
8:  331.) 

The  prohibitory  order  of  July  24.,  1767.  Gov.  Moore,  by  proclamation 
issued  June  6,  1766,  notified  all  the  patentees  under  Gov.  Wentworth  to 
present  their  papers  within  three  months,  or  that  they  would  be  rejected  in 
favor  of  other  applicants  for  the  lands.  (Doc.  Hist.,  4:  587;  N.  Y.  Hist. 
Soc.  Pub.,  1869:  291.)    To  obtain  new  grants  from  New  York,  as  also 


POWER  TO  MAKE  GRANTS  SUSPENDED,  1767.  41 


armed  -posse  eomitatus  of  from  300  to  700  men,*  met  with 
forcible  resistance,  riot  and  bloodshed. 

The  settlers  believed  themselves  protected  by  their  earlier 
grants,  and  also  by  the  King's  prohibitory  order  of  1767  ;  they 

*  Preamble  to  Vermont's  first  Constitution ;  Blade's  Vt.  State  Papers, 
241.    Poor's  "Constitutions,"  p.  1858. 

required,  payment  of  the  New  York  scale  of  fees  and  quit  rents  was  de- 
manded (more  than  double  those  of  New  Hampshire),  which  many  were 
unable  to  pay.  (Robinson's  Pet.  in  H.  Hall's  Vt.,  86;  N.  Y.  Hist.  Soc. 
Pub. ,  1877  :  II,  15,  198.)  A  previous  order  on  May  22,  1765,  forbade  the 
Surveyor  General  to  make  return  of  any  warrant  of  survey  of  any  lands 
"  actually  possessed  "  under  the  New  Hampshire  grants,  until  further  order. 
The  numerous  subsequent  grants  of  such  lands  shows,  however,  that  this 
order  was  disregarded.    (H.  Hall's  Vt.,  91.) 

In  1767,  Mr.  Robinson's  petition,  signed  by  more  than  one  thousand  of 
the  settlers,  as  was  claimed,  and  reciting  their  hardships  was  presented  to  the 
Crown,  which  led  to  the  speedy  issue  of  the  order  of  July  24,  6"],  forbidding 
upon  pain  of  his  Majesty's  highest  displeasure,  any  grant  whatever  of  any 
part  of  the  land  described  va  the  [Privy  Council's]  report."  This  made  all 
subsequent  grants  a  "doubtful  title."    Col.  Doc,  8  :  339. 

The  order  was  intended  and  understood  by  the  Crown  to  apply  to  all  the 
disputed  or  "annexed"  territory.  Gov.  Moore  so  construed  it,  and  made 
no  further  grants.  (Doc.  Hist.,  4  :  377,  qto.)  He  had  previously  received 
a  caustic  censure  from  Lord  Shelburne  for  taking  proceedings  against  New 
Hampshire  settlers  contrary  to  his  instructions  of  December  11,  1766,  that 
the  settlers  should  "-not  be  molested  on  account  of  territorial  differetices." 
(H.  Hall's  Vt.,  88  ;  Doc.  Hist.  N.  Y.,  4 :  589,  593.) 

Repeated  instructions  to  the  different  Governors  from  1769  to  1773  renewed 
the  same  injunction  against  making  any  grants  within  that  district  ;  and 
Mr.  Duane,  counsel  to  Gov.  Moore,  could  not  have  been  ignorant  of  its  ex- 
tent and  application.  (H.  Hall's  Vt.,  90,  99,  100.)  This  prohibition  was 
incorporated  in  1771  into  the  regulations  imposed  upon  Gov.  Tryon  as  the 
49th  article  ;  and  finally  by  another  royal  order  of  April  3,  1773,  all  power 
to  make  grants  except  to  officers  and  soldiers  was  withdrawn.  (Colonial 
Doc,  8  :  330,  331,  339,  343,  356,  357,  372  ;  Doc.  Hist.,  2  :  821,  824.) 
?  /  Gov.  Mojgan,  Lt.  Gov.  Colden  and  Gov.  Tryon  by  special  instructions 
/  from  Lords  Hillsborough  and  Dartmouth  in  their  letters  of  February  25, 
'  1768,  December  9, 1769,  and  December  9, 1772,  were  forbidden  in  the  strongest 
manner  "to  presume  on  any  pretence  to  make  any  grant  of  lands  annexed 
to  New  York  by  the  order  of  fuly  20,  1764."  (Colonial  Doc,  8  :  10-12,  193, 
285,  295,  318,  339,  357,  372.)  The  letter  to  Colden  was  received  by  him  be, 
fore  the  first  patent  was  issued  to  Columbia.  (See  his  letter  of  Feb.  21,  1770, 
Colonial  Doc,  8  :  206,  Colden  Papers,  N.  Y.  Hist.  Soc,  1877  :  207.)  He  un- 
derstood it  applied  to  the  whole  district.  (See  letter  to  Tryon,  May  4, 1774, 
N.  Y.  Hist.  Soc.  Pub.,  1877:  337.)  The  restrictive  force  of  the  order  of  1767 
was  admitted  by  his  Council,  June  15,  1772.    (B.  H.  Hall's  Vt,  123.) 


42 


FORCIBLE  RESISTANCE  TO  EVICTIONS. 


believed  the  New  York  Court  to  be  venal  and  corrupt,*  and 
they  would  make  no  terms  with  the  "Yorkers,"  by  which 
they  would  lose  their  homes  or  pay  twice  for  them.  Suits  of 
ejectment  were  therefore  multiplied.  But  after  the  first  few 
trials  in  1770,  the  settlers  resolved  to  defend  no  longer  in  the 
court  at  Albany,  but  at  their  own  hearthstones ;  they  ac- 
cordingly suffered  judgments  by  default,  but  resisted  writs  of 
possession  to  the  death. 

The  persistent  efforts  to  enforce  evictions  under  these  judg- 
ments led  to  the  formation  of  the  "Green  Mountain  Boys,"  a 
rude  military  organization  for  their  common  defence.  Com- 
mittees of  safety  w^re  also  formed  to  direct  measures  for  their 
mutual  protection  throughout  the  district.  They  forbade  New 
York  surveys  for  further  New  York  grants ;  prevented  by 

*New  Amer.  Cyc,  16:  731,  "Vermont,"  1863.  Judge  Livingston,  who 
presided  at  the  trials  at  Albany,  or  his  family,  held  by  New  York  patents 
35,000  acres  of  the  Vermont  lands.  Land  Patents,  Albany,  Vol.  14.  (H. 
Hall,  Vt.,  121.) 

Notwithstanding  this  order  and  all  the  additional  instructions  to  the  same 
effect,  Lt.  Governor  Colden  and  the  succeeding  Governors  after  Gov.  Moore's 
death  in  September,  1769,  made  the  numerous  grants  above  stated;  Gov. 
Tryon  even  continuing  to  issue  grants  from  the  English  war-vessel  on  which 
he  had  taken  refuge  on  fleeing  from  the  patriots  in  October,  1775,  through  the 
timely  warning  given  by  Mr.  Duane's  footman.  These  grants,  being  made 
without  actual  authority,  were  void  as  to  all  who  had  knowledge  of  that  fact ; 
and  the  order  of  1767  was  a  matter  of  such  common  knowledge  that  it  is  diflS- 
cult  to  see  how  any  of  the  grantees  could  escape  being  chargeable  with 
knowledge  of  it.  Vermont  granted  the  lands  as  unappropriated.  H.  Hall's 
Vt,  327. 

Gov.  Tryon  was  among  the  60  persons  whose  lands  were  confiscated  under 
the  N.  Y.  Act  of  attainder,  passed  Oct.  22, 1779.  (i  Green.  Laws  26  ;  T.Jones' 
Hist.  N.  Y.  in  Rev.,  2  :  510,  539.) 

Mr.  Duane's  elaborate  argument,  State  of  the  Evidence  "  in  favor  of 
New  York  titles,  may  be  found  in  N.  Y.  Hist.  Soc.  Pub.,  1870  :  1-154.  Docu- 
ments also  in  N.  Y.  Hist.  Soc.  Pub.,  1869  :  282-528.  The  Assembly's  "  State 
of  the  Right,  etc  ,"  prepared  mainly  by  Mr.  Duane  (B.  H.  Hall's  Vermont, 
606),  is  entered  at  length  in  the  New  York  General  Assembly's  Journal  of 
1773,  pp.  90  to  116,  and  is  also  printed.  As  to  these,  see  H.  Hall's  Vt.,  App. 
482;  N.  Y.  Hist.  Mag.,  Jan.,  1868:  22;  Feb.,  1868:  74 ;  Mag.  Am.  Hist.,  23: 
142  ;  also  Journals  of  Congress,  3  and  4  ;  Vt.  Hist.  Soc.  Pub.,  i  and  2,  506  ; 
I  and  2,  "  Governor  and  Council  "  ;  "  Blade's  Vermont  State  Papers  "  ;  B. 
F.  Hall's  "  Early  History  of  Vermont  "  ;  R.  C.  Benton's  "  Vermont's  Early 
Settlers,"  1894;  Thompson's  History  of  Vermont,  Pt.  2  ;  Windsor's  Narr. 
Crit.  Hist.  Amer.,  3  :,  5  :  179.    Regents'  Rep.  on  N.  Y.  Bounds.,  1873,  1886. 


REVOLT  AND  REVOLUTION  OF  VERMONT.  43 


military  force  and  intimidation  many  of  the  New  York 
grantees  from  gaining  possession ;  soon  threw  off  all  subjec- 
tion to  New  York  authority,  her  laws  and  officers  ;  forced 
local  New  York  magistrates  to  cease  the  exercise  of  their 
functions ;  and  threatened  with  death  all  who  should  en- 
deavor to  arrest  or  remove  persons  indicted  at  Albany  for  re- 
sistance to  the  writs  of  possession.  They  ridiculed  orders 
of  arrest,  and  retorted  with  a  burlesque  counter  proclama- 
tion for  the  arrest  of  prominent  "Yorkers,"  including  Mr. 
Duane.* 

The  sheriff's  -posse  comitatus,  largely  sympathizing  with  the 
settlers,  gave  him  but  feeble  support ;  and  when  it  came  to 
armed  resistance,  they  would  not  engage  in  effective  fighting. 
The  Crown,  disobedience  of  whose  orders  and  instructions 
had  led  to  all  the  trouble,  declined  to  order  military  assist- 
ance ;  and  Gen.  Gage,  when  applied  to  by  the  New  York 
Governor,  refused  to  aid  with  the  regulars. f 

The  outbreak  of  the  Revolution  checked  open  hostilities, 
but  otherwise  made  little  change.  Though  the  Vermonters 
said  that  the  only  British  oppression  they  had  ever  /"elt  was 
that  of  the  New  York  officials,  whom  they  hated  more  than 
the  British,  they  were  nevertheless  anxious  to  fight  in  the 
common  cause  of  Independence,  but  under  their  own  officers. 
They  were  the  most  effective  barrier  against  attacks  on  New 
York  by  way  of  Canada ;  they  captured  Ticonderoga  and 
Crown  Point  in  1775  ;  and  in  1777,  by  their  victory  at  Ben- 
nington, they  led  to  the  success  of  Gen.  Schuylers  cam- 
paign, resulting  in  the  capture  of  Burgoyne  and  his  army. 
But  the  pursuit  of  the  settlers'  possessions  by  the  "Yorkers" 
continued  as  before  ;  and  after  being  harried  for  twelve  years, 
they  determined  in  convention  in  September,  1776,  that  in 
independence  lay  their  only  safety  ;  t  and  in  January,  1777, 
supported  by  from  two  thirds  to  three  fourths  of  the  people, 

♦H.  Hall's  Vt.,  134,  234  ;  Chipman's  "  Seih  Warner,"  20,  21. 
t Dartmouth  in  Colonial  Doc,  8  :  339;  N.  Y.  Hist.  See.  Pub.,  1877,  p. 
364;  Williams'  Hist.  Vt.,  2  :  1-25  ;  Chipman's  Setk  Warner,  p.  20. 
tH.  Hall's  Vt.,  273-276. 


44  COLUMBIA'S  LAND-GRANTS  NOT  SETTLED. 


they  declared  Vermont  to  be  an  independent  state.*  In 
1778  the  whole  machinery  of  the  State  Government  was  in 
operation,  and  its  independence  has  been  ever  since  main- 
tained. 

When  the  treaty  of  1790  was  made, Vermont  hadfor  12  years 
been  "  as  independent  of  New  York  as  of  Great  Britain. "f 
From  1779  to  1781,  ten  years  before  this  treaty,  Vermont  had 
formally  declared  the  New  York  colonial  grants  to  be  null 
and  void. J  Most  of  the  lands  not  covered  by  the  New 
Hampshire  grants,  .Vermont  had  granted  to  other  settlers. 
The  Kingsland  tract,  claimed  by  Columbia,  was  granted  to 
Major  Elisha  Burton  and  64  others  on  Aug.  8,  1781  ;  and 
there  were  some  earlier  settlers  there  under  New  Hampshire 
authority. §  The  grantees  of  1781  thereupon  entered  on  and 
occupied  the  lands  long  after  the  expiration  of  the  3  years' 
time  allowed  to  Columbia  by  the  New  York  patents  for  settling 
and  cultivating  the  lands  granted  her.  ||  Up  to  1781,  the 
records  show  no  officers  or  soldiers  from  that  township. 

*  Hj  Hall's  Vt.,  229-234,  238,  239,  257,  273  ;  N.  Y.  Assembly's  letter  of  Aug. 
II,  1778,  to  its  Delegates  in  Congress,  N.  Y.  Hist.  Mag.,  May,  1873  :  p.  294. 

See  first  Constitution  and  Preamble  for  recital  of  grievances  against  New 
York,  Slade's  State  Papers,  241  ;  Poor's  "  Constitutions,"  p.  1858. 

In  January,  1777,  a  committee  of  the  N.  Y.  Convention  reported  that  the 
claims  of  the  settlers  were  "unjust  and  iniquitous"  and  their  complaints 
"  frivolous  pretenses."  Mr.  Dawson,  N.  Y.  Hist.  Mag.,  July,  1871,  67,  calls 
"  the  great  body  of  the  early  settlers  nothing  more  nor  less  than  lawless 
ruflSans" — the  usual  Tory  description  of  the  Revolutionary  patriots.  As 
respects  New  York  law,  the  settlers  were,  of  course,  "lawless,"  because 
they  were  sturdy  revolutionists  against  New  York  authority  ;  but  their 
defense  was  mainly  by  threats,  intimidation,  and  personal  chastisement  — 
then  a  common  mode  of  punishment ;  cases  of  great  severity  were  rare.  Mr. 
Dawson's  treatment  of  this  controversy  seems  to  me  to  consist  largely  of  im- 
material, microscopic  criticism  and  unsupported  declamation.  See  N.  Y. 
Hist.  Mag.,  January,  1871,  p.  52  ;  Ibid.,  July,  1871,  pp.  49,  62  note,  74. 

t  Jones'  Hist.  N.  Y.  in  Revolution,  i  :  51. 

%  H.  Hall's  Vt.,  301-327,  409,  note. 

2  See  Vt.  Charters,  111-114  ;  Thompson's  Hist.  Vt.,  Part  III.,  181  ;  N.  H. 
State  Pap.  26 :  728  ;  Hemmingway,  Vt.  Hist.  Gaz.  2  :  1138. 

II  Note  2.  it  does  not  appear  that  Columbia  obtained  actual  possession 
of,  or  settled,  or  cultivated  her  grounds,  as  the  patents  required.  All  the 
patents  declared  that  the  grant  should  be  null  and  void  "if  the  grantees  do 
not  within  3  years  settle  one  family  to  every  1,000  acres,  and  within  3  years 
plant  and  eflfectually  cultivate  at  least  three  acres  for  every  50  of  such  as  is 


NEW  YORK'S  EFFORTS  TO  SUSTAIN  HER  GRANTS.  45 


During  this  long  period  New  York  had  exhausted  all  avail- 
able means,  both  civil  and  criminal,  to  enforce  her  authority 
and  the  claims  of  her  colonial  grantees.  Sheriffs  with  a  large 
posse  had  been  often  sent  to  enforce  her  judgments  for  pos- 
session ;  she  had  indicted  the  leaders  of  the  rebellion,  sought 
in  vain  to  arrest  them,  offered  large  rewards  for  their  appre- 
hension, outlawed  them  and  set  a  price  on  their  heads.*  Later, 
she  had  for  years  prevented  the  admission  of  Vermont  into  the 
Union  and  sought  the  intervention  of  Congress  to  compel  her 

susceptible  of  cultivaton."  ( Pine's  Charters  Columbia  Col.,  72.)  The  dis- 
orders of  the  times  might  have  formed  an  excuse,  had  they  not  been  known 
to  exist  in  1769,  prior  to  the  issue  of  Columbia's  first  patent,  even  to  the 
interruption  of  further  surveys.  (Thompson's  Hist.  Vt.,  Part  II.,  19-20. 
Chipman's  Life  of  Seth  Warner,  21.  N.  Y.  Hist.  Soc.  Pub.,  1869:  299-302 ; 
Ibid.,  Colden  Papers,  1877;  196.) 

Upon  the  grant  of  Kingsland  to  Columbia  on  March  14,  1770,  a  committee 
was  empowered  to  convey  500  acres  to  such  settlers  as  they  thought  proper. 
(Trustees'  Min.  i  :  122,  134.)  A  year  later,  "there  was  not  a  family  in  the 
township"  (Judge  Chandler,  in  B.  H.  Hall's  Vt.,  178  ;  Doc.  Hist.  N.  Y., 
4:  708,  709);  and  in  February,  1771,  the  Judge,  Sheriff  and  Clerk  of  the 
County,  not  being  able  to  find  the  log-cabin  that  served  for  court-house  and 
iail,  they  opened  court  in  the  woods  ;  whereupon,  as  the  Clerk  entered  it, 
"  the  Court,  j/ow^,  adjourned."  (Doc.  Hist.  N.  Y.,  4  :  623,  qto.)  In  1772, 
there  were  apparently  no  settlers  on  the  tract ;  for  at  a  meeting  of  the  Trustees 
on  February  17,  it  was  reported  that  "the  former  encouragement  to  settlers 
was  insufficient "  ;  and  the  Committee  were  authorized  to  "  grant  in  fee  to  the 
_first  twelve  settlers  who  shall  go  and  settle  on  said  tract  "  one  10  acre  plot 
within,  and  100  acres  out  of,  the  town."    (Doc.  Hist.  N.  Y.,  4  :  767.) 

In  April,  1772,  Yates  wrote  Mr.  Duane  as  respects  his  own  grants  that  the 
civil  power  was  insufiScient ;  and  that  without  military  force  "  you  will,  I 
presume,  never  recover  possession  of  your  lands."    (H.  Hall  Vt.,  138.) 

For  the  following  twelve  years  the  trustees'  minutes  are  missing  ;  but 
their  next  known  mention  of  these  lands  is  in  November,  1787  (after  the 
reconstitution  of  the  college  in  the  preceding  April),  when  a  Committee  was 
appointed  to  report  "  means  for  recovering  their  landed  property  in  the 
N.  E.  part  of  this  State  called  Verfnottt."  In  March,  1788,  a  Committee  was 
appointed  "to  negotiate  with  the  persons  claiming  or  possessing  the  lands," 
to  compromise  with  them,  or  to  let,  sell,  take  possession  or  sue  for  them. 
(Trustees'  Min.,  2  :  75,  90,  92,  99.)  In  September,  1788,  the  Committee  re- 
ported that  they  had  employed  surveyors  to  run  the  lines  of  their  land  ;  and 
this  is  the  last  entry  found  concerning  them.  If  Columbia  had  ever  had 
possession,  she  had  lost  it;  the  lands  were  granted  by  Vermont,  in  1781,  to 
other  settlers,  and  they  retained  them  (ante,  p.  44).  Efforts  to  compro- 
mise, if  made,  were  ineffectual. 

*B.  H.  Hall's  Hist.  Vt.,  607  ;  H.  Hall's  Vt.,  180,  181  ;  Doc.  His.,  4:  869; 
Slade,  42. 


46    CIVIL  WAR  INADMISSIBLE:  DUMMY  PATENTEES. 


submission.  But  Congress,  after  long  vacillation,  on  August 
20,  1781,  adopted  resolutions  looking  to  the  admission  of  Ver- 
mont into  the  Union,  on  terms  which  (after  being  at  first  re- 
fused) Vermont  a  few  months  afterwards  accepted,  while  New 
York  protested.*  Thenceforward  the  land  claims  were  the 
principal  bone  of  contention  ;  and  with  Congress  no  longer 
supporting  her,  New  York  continuously  lost  ground.  For 
while  Vermont  maintained  her  independence  of  New  York, 
and  was  not  admitted  into  the  Union,  there  was  no  tribunal  to 
which  New  York  could  appeal.  Civil  war  was  the  only  re- 
source. But  Congress  would  not  sanction  civil  war ;  and  New 
York  was  not  in  a  condition  to  resort  to  it,  through  the  gen- 
eral financial  distress  and  the  difficulty  of  raising  troops ;  nor 
would  her  people  or  the  country  have  sustained  it.f 

The  validity  of  most  of  the  New  York  patents,  issued  con- 
trary to  the  King's  order,  was  at  least  doubtful ;  it  was  denied 
by  Vermont;  and  if  valid,  the  patents  had  now  become  in- 
capable of  enforcement.}: 

*Slade's  State  Papers,  163-167;  H.  Hall's  Vt.,  296,  355,  382-388,  424,  434. 
N.  H.  State  Papers,  10  :  225. 

t  See  Washington's  letter  of  February  11,  1783;  Spark's  Washington,  8: 
382  ;  H.  Hall's  Vt.,  424  :  Mag.  Am.  Hist.,  23  :  149  ;  Hamilton's  Speech  be- 
low cited,  p.  48. 

X  Note  3.  Beside  the  above  irregularities,  another  systematic  violation  by 
the  Colonial  Governors  of  the  royal  orders  was  in  the  excessive  grants  to 
individuals,  and  to  persons  not  intending  to  settle  on  the  lands.  The  design 
of  the  Crown  was  to  promote  seitlemenls,  not  speculation.  The  regulations, 
therefore,  limited  grants  to  persons  intending  to  settle  and  able  to  cultivate 
the  land,  and  limited  the  amount  of  the  grant,  at  first  to  2,000  acres,  after- 
wards 1,000,  to  each  such  person.  But  most  of  the  land  covered  by  the 
New  York  grants  was  in  tracts  of  from  10,000  to  40,000  acres  for  speculators, 
who  arranged  for  inserting  in  the  patents  the  names  of  dummies  to  the  requi- 
site number,  who,  when  the  patent  was  issued,  assigned  their  interests  to  the 
intended  grantee,  none  of  whom  ever  purposed  settlement. 

All  the  Governors  (after  Governor  Moore)  understood  this  practice, 
abetted  it,  and  practiced  it  for  their  individual  benefit.  Lord  Hillsborough 
severely  censured  it  as  evasive  and  fraudulent,  as  it  clearly  was.  (Col.  Doc, 
5:  10,  II  ;  8:  286,  293,  373,  410;  H.  Hall.  Vt.,  100-104,  107.)  Columbia's 
10,000  acres  were  derived  from  one  of  these  fraudulent  grants  to  Tryon, 
through  a  patent  granted  by  him  as  Governor  to  32  dummies,  April  14, 1772, 
and  by  them  deeded  to  him  personally  two  days  afterwards.  ( Albany  Patents, 
Vol.  16,  p.  213  ;  Deeds,  Vol.  19,  p.  97.  Gov.  Wentworth's  grants  involved 
similar  irregularities,  though  to  a  less  extent. 


GOV.  WENTWORTH'S  GRANTS  GENERALLY  UPHELD.  47 

Except  in  New  York,  the  superior  rights  of  the  settlers 
under  the  New  Hampshire  grants  prior  to  1764,  were  gen- 
erally sustained;  viz.,  by  the  Cabinet  Ministers  of  the  Crown 
(Colonial  Doc,  7  :  917  ;  8  :  343,  344,  356-359;  Doc.  Hist., 
4:  589) ;  by  the  Board  of  Trade  (Colonial  Doc,  7  :  224  ;  8  : 
330);  by  the  Commissioners  under  the  British  Act  of  1783 
for  compensation  to  Loyalists  (see  Jones'  Hist.  N.  Y.,  2: 
643-662),  who  in  the  case  of  John  Monroe  granted  him  com- 
pensation for  his  New  York  lands,  but  denied  it  for  lands  in 
Vermont  for  lack  of  title ,  because  previously  granted  to  others 
by  Gov.  Wentworth  (Vt.  Gov.  and  Council,  I  :  17  ;  Benton's 
Vt.  Settlers,  71);  and  finally  after  much  vaccillation,  by  our 
own  Congress  (ante,  p.  46).*  The  U.  S.  Supreme  Court  also 
in  the  cases  of  Society  for  the  Propagation  of  the  Gospel  vs. 
New  Haven  (8  Wheaton  464)  and  same  vs.  Town  of  Paulet 
(4  Peters  480,  502),  though  this  point  apparently  was  not  liti- 
gated, gave  judgments  for  the  plaintiffs,  grantees  of  Gov. 
Wentworth,  in  actions  of  ejectment,  in  which  the  plaintiff 
recovers  only  on  the  strength  of  his  own  title. 

In  1782  it  was  apparent  that  Vermont  was  irretrievably 
lost  to  New  York,  and  efforts  to  make  the  grants  effective 
ceased.  Time  soon  softened  the  asperities  of  the  former 
struggle ;  and  when  a  few  years  later  a  need  arose  in  Con- 
gress for  another  northern  state  and  for  more  northern  votes 
to  preserve  the  balance  of  power  (Doc  Hist.  N.  Y.,  4 :  1068) 
and  to  sustain  the  hopes  of  New  York  to  retain  the  seat  of 
government,  the  sentiment  gained  ground  that  the  controversy 
with  Vermont  ought  to  be  formally  closed  by  her  admission 
to  the  Union,  though  relinquishment  of  the  land-claims  was 
a  necessary  condition  (Hamilton  to  Chipman,  July  26,  1788 ; 
Life  of  N.  Chipman,  75-77  ;  Williams'  Vt.,  2  :  276-284). 

Aside  from  these  considerations,  New  York,  after  so  long 
a  struggle,  was  justified  in  making  peace  with  Vermont 
without  any  liability  to  make  compensation  for  land-claims 
lost  as  a  consequence  of  revolution,  even  had  they  been  of 


*  See  N.  Y.  Hist.  Mag.,  23  :  357,  360  ;  June,  1873.    Col.  Doc,  8  :  339. 


48  LAND-CLAIMS  LOST  BY  VERMONT'S  REVOLUTION. 


substantial  value.  *  For  New  York  had  never  used  or  ap- 
propriated these  lands  in  any  way.  When  the  treaty  was 
made,  there  was  not  the  remotest  probability  that  Ver- 
mont would  ever  be  regained,  or  the  land-claims  ever  made 
effective.  They  had  been  virtually  lost  for  years ;  not  by 
any  act  of  New  York,  but  by  Vermont's  rebellion  and  suc- 
cessful revolution.    The  claims  had,  therefore,  become  prac- 

*  I  Kent  178.  Hamilton's  Speech  on  his  bill  to  recognize  the  independ- 
ence of  Vermont  in  1787,  from  which  I  have  here  drawn  (Hamilton's  works, 
7  (Lodge) :  9-22  ;  Grotius,  Ch.  20,  ?8  :  Vattel,  b.  IH,  ch.  XV,  ?232).  Hamil- 
ton's bill  passed  the  Assembly  but  failed  in  the  Senate.  His  argnment  was, 
however,  the  basis  of  the  Acts  passed  in  1789  and  1790.  In  this  speech  he 
declared  that  Vermont  "had  in  fact  been  severed  from  New  York  for 
years,"  with  "no  reasonable  prospect  of  recovering  it "  ;  that  "no  rights 
capable  of  being  rendered  effective  would  be  sacrificed,"  and  "of  course  no 
obligation  to  make  compensation  will  exist"  ;  and  he  added  :  "I  should 
regard  the  reunion  of  Vermont  to  this  State  as  one  of  the  greatest  evils  that 
could  befall  it ;  as  a  source  of  continual  embarrassment  and  disquietude." 

Mr.  Harrison,  counsel  for  the  opponents  of  the  bill,  in  his  speech  before 
the  Assembly  (see  N.  Y.  Daily  Advertiser,  April  3,  1787)  was  assisted  by 
Mr.  Duane's  brief  (Doc.  Hist.,  4  (qto)  :  654),  and  urged,  among  other 
things,  that  "many  settlers,  if  not  all,  are  solicitous  to  secure  a  good  per- 
manent title  to  their  possessions  by  purchasing  the  rights  held  under  the 
State  of  New  York,"  to  which,  he  urged,  the  Bill  would  be  a  "most  fatal 
blow  "  — like  "  the  dagger  of  Brutus  from  those  to  whom  they  looked  for 
protection."    The  main  points  of  his  address  were  : 

(i)  That  it  was  M«ct'«i/«7M/w«a/ to  divide  the  State ;  (2)  but  if  necessary, 
compensation  must  be  made  to  those  who  suffer  by  it ;  (3)  that  Hamilton's 
bill  in  referring  the  land  claimants  to  a  Federal  Tribunal,  gave  no  actual 
compensation,  because  that  resource  would  be  too  expensive  to  be  of  any 
value  ;  (4)  that  compensation  should  be  sought  through  commissioners 
from  each  state  —  the  method  finally  adopted  in  the  treaty  of  1790,  and 
through  commissioners  of  high  character  and  ability. 

In  February  1781,  however,  the  New  York  Senate,  like  Massachusetts, 
had  passed  resolutions  favoring  the  independence  of  Vermont  ;  but  Gov- 
ernor Clinton  prevented  their  consideration  in  the  Assembly  by  threats  of 
prorogation  (H.  Hall  Vt.,  332-334.)  This  situation  continued  for  eight 
years  longer,  till  1789 ;  but  without  any  benefit  to  the  New  York  claimants, 
or  any  improvement  in  their  situation  or  prospects  of  compromise.  Their 
expectations  had  become  visionary. 

Mr.  J.  L.  Heaton  in  Mag.  Amer.  Hist.,  23  :  145,  says  New  York's  claim 
to  the  grants  was  for  a  decade  "as  blank  an  absurdity  as  King  George's 
own  was  soon  to  become."  And  Mr.  B.  H.  Hall  in  his  History  says  (p.  553) 
that  in  1783  the  idea  of  the  reduction  of  Vermont  was  "  foolish  and  chimer- 
ical." 


THE  TREATY  OF  lygo  A  BENEFIT. 


49 


tically  worthless,  because  not  enforceable.  Private  efforts 
to  obtain  something  by  compromise,  after  long  opportunity 
for  trial,  had  proved  mostly  fruitless.  In  declaring  by  the 
treaty  that  claims  and  titles  under  Colonial  grants  should 
cease,  New  York  extinguished  nothing  that  was,  or  could  be 
made,  of  any  substantial  value  to  the  claimants  except  by 
negotiation  ;  and  by  that  means,  through  Commissioners, 
she  did  secure  for  them  a  small  salvage,  which  could  not 
have  been  obtained  in  any  other  way.  The  treaty  was  not 
an  injury  but  a  benefit  to  the  claimants,  secured  by  the  method 
their  counsel  had  advocated  three  years  before. 

It  was  upon  this  history  and  existing  situation  of  the  New 
York  land-claims  that  the  Legislature  in  1789  and  1790 
authorized  the  treaty,  and  enacted  that  it  should  give  rise  to 
no  claims  of  compensation  against  the  State,  except  upon  the 
fund  it  received  from  Vermont  —  a  provision  which,  upon  the 
above  review,  seems  abundantly  justified.* 

This  situation  was  perfectly  understood  by  the  College  trus- 
tees in  1814  ;  for  in  1805,  and  again  in  1806,  they  had  presented 
a  petition  to  the  Legislature  for  pecuniary  aid,  stating  essen- 
tially the  same  facts  as  in  the  petition  of  1814,  except 
that  their  losses  in  Vermont  were  stated  more  prominently 
and  more  strongly.    But  aware  of  the  Legislative  exclusion 

*  Considering  that  Columbia's  land-grants  originally  cost  her  almost  noth- 
ing, the  infirmities  that  attached  to  them  and  the  absence  of  any  prospect 
of  benefit  to  be  derived  from  them  at  the  time  of  the  treaty  in  1790,  the  idea 
expressed  by  Dr.  Moore,  writing  56  years  afterward,  that  by  making  the 
treaty  the  State  gave  the  college  "a  claim  of  retribution  which  all  that  the 
State  has  since  done  for  it  does  not  fully  satisfy"  (ante,  p.  21),  seems  irra- 
tional and  fanciful,    i  Kent's  Commentaries,  178,  179. 

Between  1790  and  1814  the  State  had  given  the  college,  in  1792,  1796,  1797 
and  1802  about  $60,000  in  land  and  money,  and  in  1814  and  1819,  what  was 
estimated  at  |4o,ooo  more,  all  of  which  Dr.  Moore  would  apparently  credit 
on  the  State's  imagined  debt  of  "retribution"  in  part  satisfaction  of  that 
claim.  The  trustees  in  1814,  however,  thought  differently;  for  in  their 
memorial  of  that  year  (ante,  p.  27)  they  say  that  "no  relief  has  hitherto 
been  extended  to  her  "  on  that  account ;  which  shows  that  by  the  contem- 
porary understanding  none  of  those  grants  was  given  or  received  as  "com- 
pensation "  for  losses  in  Vermont ;  and  the  grant  of  1814  is  in  no  way  dis- 
tinguishable from  those  prior  grants  in  its  character  or  motive. 


50 


COLUMBIA'S  CLAIM  IN  1806  REJECTED. 


of  claims  to  compensation  for  such  losses,  they  sought  to 
distinguish  the  claim  of  the  College  as  a  Scientific  Institution 
from  that  of  ordinary  claims  ;  and,  therefore,  in  1805  and  1806 
"  they  ask  permission  to  enquire  whether  the  circumstance 
of  its  being  the  good  of  the  State  in  science  which  on 
this  occasion  yielded  to  its  good  in  other  things,  does  not 
put  their  case  out  of  the  ratige  of  ordinary  claims,  and 
entitle  them  to  some  other  remuneration  than  has  been 
allowed  hitherto."  * 

But  the  distinction  was  disallowed  and  the  petition  was 
rejected. 

The  principal  passages  in  that  petition  referring  to  the 
Vermont  lands  are  as  follows  : 

•'  Had  war  revered  science;  had  the  benefactions  of  indi- 
viduals survived  the  struggle  for  independence,  and  had  not 
the  exigencies  of  the  State  since  the  peace  required  enormous 
sacrifices  of  property  in  Vermont,  the  Trustees  would  have 
been  spared  the  pain  of  this  address." 

After  referring  to  the  injury  to  its  buildings  by  fire  and  the 
pillaging  of  its  library  during  the  war  and  its  loss  of  bonded 
capital  by  the  depreciation  of  paper  currency,  it  continues : 

"  Still,  the  College  might  have  emerged  with  new  lustre 
had  it  been  able  to  retain  the  lands  which  it  held  in  Vermont 
by  a  double  grant  from  New  York  and  New  Hampshire,  and 
which  were  surrendered  by  this  State  in  the  adjustment  of  her 
controversy  with  Vermont.  The  Trustees  cannot  refrain 
from  expressing  to  your  honorable  body,  that  this  blow,  which 
deprived  them  of  more  than  one  hundred  thousand  acres  of 
valuable  land,  which  long  before  now  would  have  commanded 
a  market,  cut  off  their  best  hope  that  the  college  in  a  short 
time  would  be  venerated  by  the  lovers  of  knowledge  and 
reflect  dignity  upon  the  American  name.  They  are  aware 
that  the  wound  was  inflicted  by  the  hand  of  necessity,  but 
they  ask  permission  to  enquire  whether  the  circumstance  of 
its  being  the  good  of  the  State  in  Science,"  etc.,  etc.,  as  above. 

There  were  numerous  other  land-claimants,  as  before  stated, 
in  the  same  situation  as  Columbia  College.    The  State  could 

♦Assembly  Papers,  "Colleges"  (State  Library),  Albany,  pp.  75,  113. 
The  "  remuneration  "  doubtless  referred  to  the  fund  of  ^530,000,  paid  by  Ver- 
mont (ante,  pp.  24-25). 


FAILURE  OF  SIMILAR  CLAIMS  IN  lygj.  5 1 

not  have  granted  compensation  and  thus  acknowledged  an 
obligation  to  Columbia  while  similar  relief  to  others  was  re- 
fused, without  subjecting  itself  to  the  charge  of  gross  par- 
tiality and  injustice ;  nor  was  Columbia  at  that  period  in  any 
such  special  favor  with  the  majority  in  the  Legislature  as 
would  make  any  such  favoritism,  for  her  benefit  alone,  in  the 
least  degree  probable.  I  have  found  no  case  in  which  such 
relief  was  granted  for  the  loss  of  mere  land-claims.  In  1797 
a  petition  was  presented  by  Jacob  Wilkins,  John  Rogers,  Wil- 
liam Linn  in  behalf  of  the  Dutch  Reformed  Church,  and  by 
some  twenty  others,  for  relief  on  account  of  the  State's  "  ces- 
sion of  lands  in  Vermont "  :  it  was  referred  to  a  committee, 
but  failed,  like  Columbia's  special  claim  in  1805  and  1806.* 

The  trustees  in  1814,  therefore,  had  every  reason  to  be- 
lieve that  any  claim  to  compensation  would  not  only  be  refused, 
but  would  injure,  rather  than  promote  their  petition  for  relief. 
The  State,  in  its  distribution  of  patronage  to  educational  in- 
stitutions in  need  of  it,  might  grant  as  a  necessary  bounty 
what  it  must  deny  as  compensation  for  lost  lands  —  under  a 
claim  of  right  thereto.  Hence  nothing  about  any  "claim" 
or  "  compensation  "  for  the  loss  of  lands  is  to  be  found  in  the 
petition  of  1814. 

The  petition  as  a  whole  was  manifestly  framed  as  a  strong 
appeal  for  the  ordinary  bounty  of  the  State  to  aid  an  educa- 
tional institution  in  great  need  of  relief.  Of  the  incidental 
circumstances  calculated  to  draw  favorable  attention,  the  one 
first  mentioned,  that  Columbia  had  not  received  "  one  fifth 
part  of  the  benefactions  made  to  a  kindred  institution,"  had  no 
relevancy  to  a  claim  of  compensation,  but  was  very  pertinent 
to  the  distribution  of  patronage ;  and  the  second  circumstance, 
the  loss  of  the  Vermont  land,  was  not  mentioned  as  a  subject 
of  claim,  or  of  specific  compensation  —  for  none  of  the  neces- 

*In  1786  to  1788  (Act  of  March  20)  a  grant  of  land  eight  miles  square  in 
western  New  York  was  made  to  Timothy  Church  and  about  100  others,  as 
compensation  for  personal  injuries  and  losses  of  property  while  living  in  Ver- 
mont, through  their  efiForts  to  uphold  the  authority  of  New  York  (Doc- 
Hist.  N.  Y.,  4  :  1014,  1027  ;  qto  ed.,  ibid.,  610,  615  ;  B.  H.  Hall's  Vt.,  542, 
757)  — a  wholly  diflFerent  case  from  that  of  the  N.  Y.  land-claimants. 


52   DEEMED  A  BOUNTY  BY  THE  SENATE  COMMITTEE. 

sary  data  for  such  an  application  was  stated ;  but  it  was  in 
inserted  as  a  make-weight,  showing  a  large  additional  loss  of 
means  which  the  college  had  formerly  counted  on — circum- 
stances which  might  naturally  induce  the  Legislature  to  give 
Columbia  a  liberal  share  of  the  patronage  expected  to  be  dis- 
tributed through  the  new  lottery  (ante,  pp.  26-27). 

The  treatment  of  the  subject  in  the  select  committee  of  the 
Senate  was  of  precisely  this  import.  Had  compensation  for 
lands  lost  through  the  treaty  of  1790  been  the  purpose  of  the 
grant,  an  investigation  and  report  must  have  been  made  by 
the  committee  as  to  the  value  of  the  lands  at  the  time  of  the 
treaty ;  the  nature  and  condition  of  the  college  title  at  that 
time,  and  her  ability  ever  to  gain  possession.  No  such  inves- 
tigation or  report  was  made,  or  even  suggested.  But  a  most 
careful  inquiry  and  an  itemized  report  were  made  as  to  all  the 
government  patronage  the  college  had  received  from  its  very 
foundation.  Only  about  $45,000  in  money  were  found,  of 
which  only  $6,500  remained  as  an  active  source  of  revenue. 
The  committee  reported  that  they  could  not 

"  well  conceive  how  the  public  -patronage  to  so  respectable 
and  ancient  an  establishment  should  have  been  so  limited, 
unless  on  the  supposition  that  Columbia  was  too  richly  en- 
dowed to  need  it"  —  which  was  a  mistake  ;  that "  no  grants  have 
been  made,  except  by  lottery,  and  a  few  small  tracts  of  land, 
and  44,000  acres  of  land  in  Vermont,  which  was  lost  by  the 
cession  to  Vermont,"  (considered  as  an  immense  sacrifice), 
and  in  closing  say  :  "  Considering  her  hard  case,  it  will 
comport  -with  the  dignity  and  magnanijuity  of  this  State  to 
interpose  -with  the  public  patronage  for  her  effectual  relief."  * 

Plainly  there  was  no  thought  in  the  minds  of  this  committee 
of  making  reimbursement  or  retribution  for  the  loss  of  lands 
in  Vermont ;  there  is  no  suggestion  of  that  idea,  but  only 
of  a  liberal  grant  of  public  patronage  for  Columbia's  relief. 

In  the  various  subsequent  petitions  also  for  the  repeal  of 
the  "removal"  condition,  the  grant  of  1814  is  nowhere  re- 
ferred to  as  compensation,  but  as  the  ordinary  bounty  or 


*  Senate  Journal  1814,  37th  Session,  pp.  154  to  156. 


TO  E^UAI.  THE  GIFT  TO  HAMILTON  COLLEGE.  53 


assistance  granted  to  other  necessitous  institutions.*  By  the 
Legislative  committee  of  1819  the  grant  of  1814  is  referred  to 
in  the  same  manner  —  as  bounty  or  assistance  intended  to 
be  equal  to  the  $40,000  given  to  Hamilton  College,  with  no 
suggestion  of  compensation  for  Vermont  lands ;  |  and  the 
$10,000  given  by  the  Act  of  1819  to  make  good  the  erroneous 
estimate  of  value  of  the  Garden  grounds,  were  given  as  a 
bounty  and  not  as  compensation  for  the  loss  of  land,  as 
further  appears  plainly  from  the  preamble  of  that  Act.  J 

Such  then  was  the  conclusion  of  the  whole  matter  —  "to 
interpose  with  the  fubltc  patronage  for  her  effectual  relief  " ; 
not  to  make  "  compensation"  for  the  loss  of  land-claims  ex- 
cluded by  law  25  years  previously,  again  specifically  barred 
20  years  before,  and  finally  in  1805  and  1806,  on  Columbia's 
petition  urging  the  claim  on  exceptional  grounds,  rejected. 

The  references  to  the  meagre  gifts  Columbia  had  received, 
as  compared  with  other  institutions,  and  to  the  disappoint- 
ment of  her  expectations  from  her  landed  property  in  Ver- 
mont, served  the  purpose  intended.  They  awoke  the  sym- 
pathy of  the  Legislature,  and  aided  in  securing  a  land  grant 
of  the  supposed  value  of  $40,000  by  the  State's  bounty,  of 
which  Columbia  had  received  nothing  since  1802. 

But  from  the  considerations  above  recited,  that  grant  cannot 
rationally  be  ascribed  to  any  intent  of  the  Legislature  to 
make  compensation  or  retribution  "  for  any  injury  inflicted, 
or  for  any  obligation  to  Columbia,  through  the  treaty  of  1790. 
That  idea,  so  far  as  I  can  discover,  is  of  comparatively  recent 
origin,  perhaps  growing  out  of  the  later  appreciation  of  the 
immense  ultimate  value  of  the  grant  of  1814,  so  far  sur- 

*  Trustees'  Min.,  2  :  477,  494. 

t  Assembly  Journal,  1819  :  123,  124. 

fit  recites  that,  "  Whereas  it  is  of  the  first  importance  that  seminaries  of 
learning  should  be  carefuUy  protected  and  receive  from  time  to  time  the  /os- 
tering  aid  of  the  Legislature  :  and  Whereas,  with  these  views,  all  the  right, 
title  and  interest  of  the  people  of  the  State  ...  in  the  Botanic  Garden  were 
by  the  Act  of  April  4,  1814,  granted  to  Columbia  College  .  .  .  and  Whereas 
the  said  grant  has  not  been  productive  of  the  benefit  intended,  Therefore  be 
it  enacted  "  etc.  —  giving  ^Sio.ooo  and  repealing  the  condition  of  the  Act  of 
1814.  This  Act  afiected  Columbia  College  alone.  See  ante,  pp.  15-16. 


54      ULTIMATE  VALUE  OF  GRANT  NOT  FORESEEN. 


passing  the  State's  gifts  to  any  other  educational  institution, 
and  perhaps  to  all  such  institutions  combined,  as  seemingly 
to  call  for  explanation  of  such  excess  of  favor  to  Columbia. 

But  there  was  never  any  need  of  explanation  or  apology ; 
for  Columbia  has  never  enjoyed  any  excess  of  favor  at  the 
hands  of  the  Legislature,  certainly  not  in  1814.  The  land 
granted  by  that  Act  was  supposed  to  be  only  equal  in  value 
to  the  $40,000  in  money  granted  to  Hamilton  College,  which 
was  but  one-fifth  the  amount  given  to  Union  by  the  same  Act. 
The  vast  increase  in  the  value  of  the  land  bestowed  on  Co- 
lumbia was  not  foreseen  ;  it  was  an  accident  of  its  situation  ; 
and  the  benefits  of  its  increase  were  secured  to  the  college, 
after  long  waiting,  only  by  the  sagacity,  the  untiring  patience 
and  the  devoted  services  of  the  college  trustees. 


I 


INDEX. 


Acts   of   Legislature   1790,  Vennont 
treaty  22,  48 
1795,    distributing   the  Vermont 
fund  25 

1810,  buying  the  Elgin  garden  8,  g 
1814,  grants  garden  to  Columbia, 

Lotteries  for  Union,  etc.  12-15, 

23.  52 

1819,  corrects  error  of  1814  15,  23,  53 
Banyar,  Goldsbrow,  Clerk,  speculator  30 
Board  of  Trade,  see  Lords  of  Trade 
Boundaries  of  New  York  province  by 
charter  of  1664,  valid  to  the  Dutch 
east-line  31  ;  fixed  by  Hartford  treaty 
of  1650,  10-20  miles  east  of  the  Hud- 
son 32-33  ;  cofifirmed  by  states  gen- 
eral 33-34  ;  20-mile  line  adopted  by 
Governor  NicoU's  boundary  commis- 
sion, confirmed  by  the  Crown  34  ;  ap- 
plied to  Massachusetts  and  New  Eng- 
land 34  ;  so  recognized  by  New  York 
and  the  Crown  34-38.  In  1764  Ver- 
mont annexed  to  New  York  28,  39. 
In  1786  New  York  cedes  large  tract  to 
Massachusetts  38.  Of  Massachusetts 
colony  by  charter  of  1628,  ran  to  Pa- 
cific, excepting  the  Dutch  "actual 
possessions"  31  ;  north,  3  miles  be- 
yond Merrimack  river  ("Endicott 
stone")  31  ;  by  new  charter  of  1691, 
westerly  co-terminous  with  Connec- 
ticut, i.  e.,  to  20  miles  east  of  the 
Hudson  36 ;  in  1640  Vermont  part 
of  Massachusetts  annexed  to  New 
Hampshire  37-38 
Burr,  Aaron,  aided  by  Dr.  Hosack  4 
Charter,  Duke's  of  1664  and  1674  extin- 
guished by  merger  in  1684,  36.  Of 
Massachusetts  annulled  in  1684  ;  new 
one  1691 ;  bounds  of,  36.  See  Bound- 
aries. 

Clinton,  Geo.,  Governor  claims  to  the 
Connecticut  31 

Colden,  Lt.  Governor  urges  Connecticut 
river  to  be  made  New  York  bounds 
29,  37.  His  different  bounds  in  1738 
37.  After  1764  makes  conflicting 
grants,  large  fees  ;  grants  continued 
after  king's  prohibition  in  1767  29,  30 

College  of  Physicians  and  Surgeons. 
Trustees  oppose  State's  purchase  of 
Garden  8  ;  in  charge  of  garden  1811  to 
1816,  9 ;  five  years  lease  to  Denison, 
reserving  use  for  Medical  School  9- 
10;  his  neglect  11.  In  October  1816 
Garden  delivered  to  Columbia  15  ;  a 
welcome  relief  1 1 

Columbia  College,  did  not  favor  state's 
purchase  8  ;  Garden  lightly  esteemed  ; 
reluctantly  taken  14-16  ;  long  an  ex- 


pense ;  took  possession  October  1816  ; 
repaired  and  let  for  keeping  in  re- 
pair; sale  or  exchange  hoped  for, 
removal  clause  repealed  1 5-1 6.  Plants 
given  in  1819  to  Hospital  16  ;  not  re- 
quired to  maintain  it  12-14 ;  orna- 
mental features  preserved  16,  20.  Dr. 
Hosack  desires  it  for  societies  ;  offers 
to  restore  it  16,  17.  Short  leases  at 
small  rent  until  1828 ;  then  for  21 
years  to  William  Shaw,  1829  to  1850 
17.  In  1833  abates  rent  17  ;  in  1835 
lease  assigned  to  John  Ward  18  ;  ef- 
forts for  sale  of  long  leases  unsuccess- 
ful 18  ;  in  1855  abandons  intent  to 
remove  to  Fiftieth  street;  in  1857  goes 
to  Forty-ninth  street ;  in  1897  to  One 
Hundred  and  Twentieth  street  19. 
Great  cost  of  grading  and  assessments 
18  ;  sale  in  1857  of  16  lots  19  ;  by  1875 
all  lots  leased,  rentals  large,  enabling 
later  expansion  into  a  University  19. 
Land  claims  on  grants  in  Vermont  hy 
Colden  and  Tryon  22,  25,  30  ;  extin- 
gnrished  by  treaty  of  1790  22  ;  the 
treaty  a  benefit  not  an  injury  48-9 ; 
Columbia  did  not  apply  for  Vermont 
fund  25.  See  Compensation,  Treaty, 
Vermont. 

Compensation  for  land-claims  in  Ver- 
mont not  intended  by  Act  of  1814, 
only  ordinary  bounty  21-54  !  shown 
by  its  Preamble  23  ;  by  Senate  Com- 
mittee's report  and  Act  of  1819  23,  52  ; 
not  asked  in  petition  26  ;  sought  in 
1806  on  special  grounds  and  not 
granted  50,  refused  to  other  petition- 
ers 23  ;  granted  to  none  50-51  ;  College 
did  not  apply  for  share  in  fund  25. 
Amount  of  land  uncertain  25  ;  title 
doubtful  30,  41,  47  ;  the  grants  prohib- 
ited 30  ;  not  settled  as  conditioned  45  ; 
held  void  by  Vermont  31,  46  ;  if  ever 
valid,  worthless  and  not  enforceable 
in  1790  by  Vermont's  revolt  and  in- 
dependence 24,  48-49  ;  no  legal  liabil- 
ity for  27,  47-48  ;  prohibited  twice  by 
statute  24-25,  50  ;  not  the  contempor- 
ary understanding  49  note  ;  President 
Moore's  fantastic  view  49;  improba- 
bility of  24,  53 

Connecticut,  river,  as  a  boundary, 
abandoned  by  the  Dutch  and  by  New 
York  33-34  ;  in  the  Duke's  charter  of 
1664  a  limit,  not  a  boundary  31  ;  made 
boundary  oit  New  Hampshire  in  1764 
35  ;  see  Boundaries;  colony,  westerly 
line  co-terminous  with  Massachusetts 
31-36 

Dalton,  Dr.,  Account  of  Dr.  Hosack  5 


56 


INDEX. 


Dawson,  H.  B.,  treatment  of  Vermont 

controversy  44 
Double  (confirmatory)  grants  25  note, 

50 

Duane,  James,  chairman  of  trustees  25  ; 
large  grants  to,  shared  in  fund  25,  30  ; 
champion  of  claims  to  Connecticut 
river  36,  42 ;  counsel  of  Governor 
Moore  41  ;  resisted  admission  of  Ver- 
mont into  Union  41  note 

Dutch  Reformed  Church,  sale  of  16  lots 
to  19 

Dutch  settlers,  first  colony  planted 
1623  32.  In  1650,  by  Hartford  treaty, 
abandoned  claims  east  of  20-mile  line 
except  a  few  acres  at  Hartford  33 ; 
their  "actual  possessions"  less  34; 
ratified  by  States  General  33  ;  east- 
line  of  N.  Y.  34 

Elgin  Botanic  Garden,  current  errors 
I,  21.  Location,  deed,  cost,  founding 
by  Dr.  Hosack  6-8.  Sale  to  state  in 
1810  widely  supported  ;  but  not  by 
Columbi  a  or  Physicians  and  Surgeon 's 
College  7-9  ;  satirical  note  8.  In  181 1, 
in  charge  of  the  Regents,  and  in  care 
of  Physicians  and  Surgeon's  College- 
botanical  medical  instruction  in  9-10. 
Leases  to  Davidson  for  5  years,  re- 
serving Medical  College  uses  ;  tenant 
to  keep  in  repair  10.  Granted  to  Col- 
umbia in  1814  II.  Delivered  to  her, 
October,  1816,  dilapidated  15.  Repair, 
15.  Plants  given  to  Hospital  16.  Last 
contemporary  descriptions  17,  20,  21. 
Decline  of,  lack  of  public  support  19, 
20.  Hot  houses  removed  probably 
about  1850  20  ;  Engravings  of  "  1825  " 
not  originals  20  ;  Vast  increase  in 
value  leading  to  college  expansion  19. 
First  sale  of  lots  1857,  all  improved 
by  1875,  rentals  then  first  "  highly 
profitable  "  19.  Not  granted  to  Col- 
umbia, as  compensation  for  Vermont 
land-claims  21-53.  See  Cornpensalion 
Columbia  College  ;  College  of  Physi- 
cians etc.  designed  to  equal  Hamil- 
ton's gift  of  $40,000,  53 

France,  Dominated  the  region  of  Lake 
Champlain  until  1759  ;  her  settlements 
on  the  East-Side  38 

Engravings  of  garden  20  .  3-  2  < 

Evictions  attempted,  a  fatal  mistake 
36  ;  led  to  resistance  by  Green  Moun- 
tain Boys,  40-3  ;  revolt  and  indepen- 
dence of  Vermont  44.  Help  to  N.  Y. 
by  regular  troops  refused  43 

Francis,  J.  W.,  on  Dr.  Hosack  and  Gar- 
den 4.  5,  7,  21 

Green  Mountain  Boys,  formed  to  protect 
settlers  42.  Captured  Crown  Point 
43  ;  victory  at  Benington  leading  to 
Burgoyne's  surrender  43 

Hamilton,  Alex.  3.  Supports  Treaty  of 
1790  46,  48 

Horticultural  Society.  Seeks  lease  of 
Garden  17 

Hosack ,  David,  parentage  2  ;  education 
2  ;  foreign  study  and  beginning  bot- 


any 2 ;  brought  home  first  mineral 
cabinet  and  an  herbarium  3  ;  profes- 
sor at  Columbia  and  College  of  Physi- 
cians and  Surgeon's  till  1826  ;  formed 
Rutger's  Medical  College  ;  death 
1835  3-  Leading  physician  for  30 
years  3.  One  of  founders  of  New 
York  Historical  Society,  Bellevue 
Hospital,  New  York  Horticultural  So-  ' 
ciety, copious  author  4.  Aided  Colonel 
Burr  4.  Character  and  social  prom- 
inence 4,  5.  Founded  Elgin  1801,  its 
rapid  growth  6.  Expectations  from 
its  fruit  culture  7.  Garden  sold  in 
1810  to  the  state  7-8.  Mortgaged  the 
proceeds  to  friends  8.  Satirized  8 
note.  Expected  the  state  to  maintain 
the  Garden  11.  Planned  American 
Illush ated  Flora  12.  "Statement" 
to  correct  errors  i.  Until  1816  lec- 
tured at  the  Garden  10.  Tries  to  re- 
new connection  with  the  Garden  ;  in 
1828  offers  to  restore  it  11,  16,  17.  His 
botanical  library  in  New  York  Botan- 
ical Garden  6 

Hosack,  Alex.  E.,  widow's  gifts  to 
Academy  of  Medicine  5. 

Jesuit  College,  opposite  the  Garden  7, 
note 

Judgments  of  eviction,  a  mistake  caus- 
ing the  loss  of  Vermont  36-44 

Land-claims,  see  Columbia  —  Compen- 
sation. Speculation  in  30  note  ; 
worthless  in  1790  48-9.  See  Treaty. 
Of  Massachusetts,  large  cession  to 
her  by  New  York  38 

Land-grants  in  Vermont  ;  see  New 
Hampshire  Gra>its,  Wentzvorlh, 
Colden,  Tryon,  Compensation ;  to 
Columbia  College  25.  Conflicting, 
Speculation  in,  30  note.  Power  to 
grant  suspended  in  1767  30.  Treated 
as  void  by  Vermont  31,  44.  Double 
25,  50.  Large  fees  on  New  York 
Patents  30  note.  Excessive,  by  use 
of  dummies  46  note  ;  Governor  Went- 
worth's  uphold,  except  in  New  York 
47.  In  1790,  New  York  grants  worth- 
less 22,  27,  47-9 

Leases  of  Garden  10,  11,  16-18.  In  lots 
for  first  class  dwellings  19 

Lords  of  Trade,  Order  of  1764,  annexa- 
tion to  New  York  28,  29,  40,  Boundary 
of  Charter  defective  31  ;  Uphold  20- 
mile  line  31,  34,  39,  47.  Power  to 
make  grants  suspended  30 

Lottery  for  buying  the  Garden  8  ;  for 
Union  college  etc.  12,  14 

Massachusetts,  see  Boundaries  ;  Char- 
ter of  1628,  ran  to  the  Pacific,  except 
"  actual  possessions  "  of  the  Dutch  31. 
See  Dutch.  "Just  limits"  reported 
by  Commission  31-5.  Extent  north- 
wards to  Canada  38,  charter  cancelled 
1684  36;  new  one  1691,  coterminous 
with  Connecticut  westward  36  ;  Colden 
and  Duane,  contra  36.  Receives  large 
tract  from  New  York  in  1786  38 

Mitchill,  Dr.  S.  L.,  Professor  of  botany 


INDEX. 


57 


8 ;  lectures  at  Garden  lo ;  popular 
course,  a  failure  9 

Moore,  Sir  Henry,  New  York  Governor. 
His  grants  conflict  with  Governor 
Wentworth's  30  ;  intended  a  grant  to 
Columbia,  but  observed  the  restrain- 
ing order  of  1767  30 

Moore,  N.  F.,  President,  fantastic  claim 
of  ^^retribution  "  21,  49  note 

New  Hampshire  Grants,  now  Ver- 
mont. See  Columbia  College,  Went- 
worth,  Vermont,  north  part  held  by 
the  French  37 ;  south  part,  by  Massa- 
chusetts till  1740,  31,  37.  In  1741  in- 
cluded in  Governor  Wentworth's  com- 
mission 28  ;  130  townships  granted  by 
him29.  In  i664<2n)2ir;ftfrftoNew  York 
28,  39.  Former  grants  not  affected  29, 
40  ;  conflicting  grants  by  New  York 
lead  to  forcible  resistance  and  inde- 
pendence of  Vermont  29-43.  In  1667, 
New  York  grants  prohibited  30  ;  order 
disobeyed  30,  42  ;  titles  doubtful  41-2 

New  York  Province,  see  Boundaries. 
A  proprietary  government  till  1684,  32; 
charter  then  extinguished  by  merger 
in  the  Crown  28,  36  ;  in  1688,  annexed 
to  New  England  36 ;  in  1689  reconsti- 
tuted without  boundaries  36  ;  in  1764, 
New  Hampshire  grants  annexed  to 
28,  37.  Governors  Crown  agents  only 
28  ;  in  1767  power  to  grant  suspended 
30.  See  Land  Grants.  Efforts  to 
evict  settlers  a  fatal  mistake  36-40. 
Outlawry  of  leaders  in  1774,  45 

New  York  State  ;  continued  previous 
efforts  to  evict  settlers  43  ;  posse  com- 
itatus  no  heart  in  it  43,  46 ;  in  1782, 
senate  favored  acknowledgment  of 
Vermont's  independence ;  thwarted  by 
Governor  Clinton  48,  kept  Vermont 
out  of  the  Union  till  treaty  of  1790,  47- 
9.  In  1786  cedes  large  tracts  to  Massa- 
chusetts 38 

Nicolls,  Governor.  See  Boundaries, 
Massachusetts.  Head  of  boundary 
Commission  1664;  fixed  20-mile  boun- 
dary applicable  to  all  New  England 
33-4.   His  decisions  adhered  to  34 

Regents  of  University  of  New  York,  in 
charge  of  Garden  i8n-i8i6;  to  incur 
no  expense  9,  see  Elgin 


Ridpath,  J.  C,  error  as  to  treaty  25 
Rutgers    Medical    College;    see  Dr. 

Hosack 

Shaw,  William,  Lessee  for  1829-1850, 
17  ;  memorial  for  abating  rent  17-18. 

Treaty  of  1790,  $30,000  for  New  York 
grantees  25  ;  no  injury  to  land-claim- 
ants 48-9;  of  Hartford,  1750,  Dutch 
bounds  32  ;  ratified  by  States  general 
33  with  Coyinecticut,  1664,  20-mile 
line;  west  line  co-terminus  with  Mas- 
sachusetts 34 

Tryon,  Sir  William,  Governor.  Half  his 
grants  confirmatory,  30  note  ;  the  rest 
prohibited  by  order  of  1767,  continued 
till  his  flight  42;  titles  doubtful  30,  41- 
2,  47;  fees  30 

Union  College,  lotteries  1805,  1814,  14. 

United  Colonies  of  New  England ;  treaty 
with  Stuyvesant  1650,  32. 

Van  Amringe,  Dr.  J.  H.,  histories  of 
Columbia  College  and  University  2, 
21-22 

Vermont,  see  Duane,  New  Hampshire 
Grants.  Kept  out  of  Union  by  New 
York  till  treaty  of  1790,  25,  45.  Debate 
on,  by  Hamilton  47-8.  Revolt  caused 
by  New  York's  conflicting  grants  32, 
43;  declared  them  void,  granted  them 
to  others  44.  Settlers  called  "lawless 
ru£fians"43.  In  1781  favored  by  Con- 
gress ;  civil  war  was  impracticable 
46,  her  titles  sustained  46-7 

Ward,  John,  assignee  of  lease  1835,  18. 

Wentworth,  Benning,  Goveruor,  com- 
mission of  1741  extended  to  New  York 
i.  e.,  to  the  20-mile  line  28,  34-7  ; 
granted  130  townships  mostly  in  1761-4 
28-c) ;  none  after  166429  ;  titles  under 
valid,  upheld  by  Crown  29,  40-1,  47. 
Dispute  submitted  to  the  King  29. 
Censured  for  grants  pendente  lite  29. 
See  New  Hampshire  Grants 

York,  Duke  of,  see  Charter  ;  proprietor 
of  lands  captured  from  the  Dutch  32  ; 
boundaries  indefinite,  to  be  fixed  by 
commission  ;  fixed  at  20-mile  line  32- 
5  ;  annulled  Massachusetts  Charter  of 
1628  ;  in  1688  annexed  New  York  to 
New  England  35-6  ;  ascended  throne 
1688,  when  charters  merged  in  Crown, 
and  ceased  to  be  operative  28,  36 


Cl/WCS 


